IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.E.A. No. 122 of 2006 DATE OF DECISION: January 6, 2009 Commissioner of Central Excise Commissionerate …Appellant Versus M/s Garima Enterprises and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Mr. Sanjeev Kaushik, Central Govt. Counsel, for the appellant. Mr. Manoj Sood, Advocate, for the respondents (in CEA No. 122 of 2006) Mr. Surjit Bhadu, Advocate for the respondents (in CEA No. 101 of 2006) 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 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 C.E.A. No. 122 of 2006 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 by claiming the following questions of law:- “i) Despite the specific findings of the Adjudicating authority and the Commissioner (A), invoice-wise, on the commission of the offence in the instant case, vis-à- vis the guidelines set down by Shri R.K. Gupta for identifying bogus transactions, would a general statement, say, of the nature of Shri R.K. Gupta’s, lose its evidentiary value and its pre-eminent fulcrum position in a case that is built around it; ii) Whether the preponderance of evidences and probabilities in this case establish the commission, by the Respondents, of the offences alleged in the Show Cause Notice, supra and whether the Tribunal was correct in ignoring such preponderance of evidences and probabilities in passing their order against the Appellants.” The Tribunal in its order dated 24.8.2004 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 2 C.E.A. No. 122 of 2006 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 alongwith 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. 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 cooper 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. Having heard learned counsel for the parties at a considerable length we are of the view that no question of law warranting admission of appeal would arise because the Tribunal has 3 C.E.A. No. 122 of 2006 recorded findings of fact. Once there is no material on record to establish bogus nature of the transactions then there is no possibility of holding the assessee-respondent liable by invoking the provisions of Section 11AC of the Act and Rule 173Q of the Central Excise Rules, 1944 and other provisions. Accordingly, the appeals fail and the same are hereby dismissed. (M.M. KUMAR) JUDGE (H.S. BHALLA) January 6, 2009 JUDGE Pkapoor 4