LAWS(P&H)-2009-1-260

COMMISSIONER OF CENTRAL EXCISE Vs. GARIMA ENTERPRISES

Decided On January 06, 2009
COMMISSIONER OF CENTRAL EXCISE Appellant
V/S
GARIMA ENTERPRISES Respondents

JUDGEMENT

(1.) This order shall dispose of CEA Nos. 101 and 122 of 2006 as both the appeals raise common question of law. The Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, the Tribunal') has also disposed of the appeals by one common order. The revenue has preferred the aforementioned appeals under Section 35-G of the Central Excise Act, 1944 (for brevity, the Act'), against the order dated 28-4-2004 [2005 (182) E.L.T. 106 (Tribunal)] by claiming the following questions of law :-

(2.) The Tribunal in its order dated 24-8-2004 [2005 (182) E.L.T. 106 (Tribunal)] has recorded the finding that the revenue has failed to establish the allegation that the assessee-respondent did not receive the raw material and that the transactions were bogus with the object of availing Modvat credit. The entire case of the revenue has been based on the statement of Shri R.K. Gupta, Proprietor of M/s. R.K. Enterprises, tendered under Section 14 of the Act. He has deposed that he trades in non-ferrous metals having a staff of four persons. The name of the firms from whom he has purchased the metals have been disclosed along with the names of those to whom the metals are sold by him. He had disclosed that payments are made and received by him through cheques. A crucial statement made was that transport companies did not exist although GR books are printed by him and that where the quantity delivered on an invoice through a tempo is more than 6 tonnes, the transaction would be bogus.

(3.) The Tribunal accepted the argument of the assessee-respondent that the statement was very vague because it nowhere specifically admitted that the invoices issued in the name of the assessee were bogus. The revenue did not rebut the stand of the assessee-respondent that they had received any invoice of more than 6 tonnes and as such the supply made to the assessee-respondent could not be regarded as bogus. The revenue further failed to controvert the specific plea raised by the assessee-respondent that they were sending copper rods to their job workers for conversion and paying conversion charges to the job workers. On the aforementioned basis, it was found that the allegation levelled against the assessee-respondent that no material, in fact, was purchased or sold and bogus transactions on papers were shown to avail the Modvat credit.