Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/CASE LAW/2016-17/3039

Whether demand based upon the statement of third party is sustainable when there is no corroborative evidence from an independent source?

Case:- G.S. ALLOY CASTINGS LTD. VersusCOMMISSIONER OF C. EX., GUNTUR
 
Citation:- 2016 (331) E.L.T. 310 (Tri. - Bang.)
 
Brief facts:- The appellant was engaged in the manufacture of MS Bars of varying sizes and they procured the raw material i.e. Crop End Billets/Ingots scrap etc. mainly from Visakhapatnam Steel Plant.
It is seen that the officers of the Directorate General of Central Excise Intelligence, Regional Unit, Hyderabad conducted a search in the premises of one M/s. Usha Enterprises, in respect of the Central Excise matters relatable to that unit. They recovered certain incriminating documents and in terms of the said documents, certain Central Excise Invoices issued by one M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd., Visakhapatnam showing the appellant as consignee were recovered. On an explanation, Shri Ashok Garg, Managing Director of the said M/s. Usha Enterprises deposed that two pages of the said record relatable to supplies made by M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd. relates to fake arrangement made by them with M/s. Usha Enterprises as also with M/s. G.S. Alloy Castings Ltd. In terms of the said arrangements, M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd. is issuing invoices on the basis of which M/s. G.S. Alloy Castings Ltd. is availing the credit, without actually receiving of the inputs. They received their commission in between. He also gave the details of encashment of cheque amounts and exchange of the same with cash.
 
Statement of Shri Korry Yadagiri, Accounts Clerk of M/s. Usha Enterprises were recorded wherein he admitted about the notings on the said two pages. As per the statement of Shri Grandhi Ramji, Managing Director of M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd. deposing that Crop End Billets, which do not fit in to their manufacturing process are being sold in the open market and they have business dealing with M/s. Usha Enterprises and he also gave details of the cash amount being returned to M/s. Usha Enterprises as against the cheque given by them. Statement of one Shri K.R.G. Sundaram, Manager (Administration) of the appellant’s company was also recorded. As per his statement, they have placed orders for the scrap to M/s. Usha Enterprises, who supplied the same as per the monthly schedule and rates would be negotiated as per the market condition prevailing from time to time. They received the quantity of scrap mentioned in the invoice issued by M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd. on account of M/s. Usha Enterprises.
On the above basis, the Revenue entertained a view that Cenvat credit to the extent of Rs. 2,60,369/- stands availed by the appellant, on the basis of the invoices issued by M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd., on account of M/s. Usha Enterprises, without actually receiving the said raw material. Accordingly proceedings were initiated against them resulting in confirmation of demand and imposition of penalty.
On appeal against the said order of the original adjudicating authority, the Commissioner (Appeals) observed that the entire case of the Revenue is based upon the statements recorded during the course of investigation, which statements are uncorroborated by any documentary evidence. He observed that the appellant's officers nowhere admitted that they have not received the raw material in question and the statements recorded by the officers only reflected the financial arrangement between M/s. Usha Enterprises and M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd. They have made the payments of the raw material by cheque and the Revenue has also not made any enquiry from the transporters even though their names were available. As such, by taking note of affidavit of one of the transporters, M/s. Srinivasa Transport, he concluded that the goods have actually transported up to the factory premises and there is no need to deny the availment of credit. He accordingly set aside the impugned order of the original adjudicating authority.
The said order of the Commissioner (Appeals) was appealed against by the Revenue before the Tribunal. The Tribunal vide its Final Order Nos. 705 & 706/2011, dated 14-10-2011 observed that the Commissioner (Appeals) while setting aside the order of the original adjudicating authority has taken into consideration an affidavit of one Shri D. Srinivasa Rao, a representative of M/s. Srinivasa Transporter, which was not before the original adjudicating authority. Accordingly, the Tribunal set aside the order of the Commissioner (Appeals) and remanded the matter for fresh decision without considering the affidavit of Shri D. Srinivasa Rao.
In the remand proceedings, the Commissioner (Appeals) has upheld the order of the original adjudicating authority. Hence the present appeal.

Appellant’s Contention: The appellants in the statement recorded during the investigation had clarified their stands that they have actually received the materials in question and any documents recovered from the premises of third party cannot be adopted to hold against them.
 
Reasoning of Judgment:- After hearing both sides and after going through the impugned orders including the order of the Tribunal vide which the matter was remanded, they find that the entire case of the Revenue is based upon the statements of the authorized representatives of M/s. Usha Enterprises and M/s. Sree Tirumala Steel Rolling Mills Pvt. Ltd. Apart from that, there is not even an iota of evidence on record to show that the appellant has not actually received the inputs in question. Even the said statements have not been tested about their correctness by granting cross-examination. There is no inculpatory statement of the present appellant and on the contrary, the appellant’s representative, has clarified, in the statement recorded during the investigation that the inputs were actually received by them. It is not the Revenue’s case that the said Crop End Billets were not the raw material for the appellant.
Even if they do not take into consideration the affidavit of Shri D. Srinivasa Rao in terms of the earlier order of the Tribunal, they find that the evidence collected by the Revenue is only in the shape of statements of third party. It is well settled that in the case of clandestine allegation, the onus to establish the same is on the Revenue, which is required to be satisfied by production of sufficient, tangible and positive evidence. The uncorroborated statements of third party cannot be adopted as an evidence, without corroboration from an independent source though such statements can be of some value but cannot be solely relied upon for the purpose of holding against the assessee.
They also note that the Revenue has not bothered to make any investigation from the transporters even though their names were available in the respective invoices. They have not found out whether the vehicles number mentioned in the invoice, have been actually used for the transportation of the goods or not. The Revenue is silent on the issue that if the appellant has not received the materials in question, how have they manufactured the corresponding final products. It is not the Revenue’s case that they have procured the raw material from any other alternative source. It is not only inpractical but impossible to manufacture the final product without raw material in question. The appellants having reflected the raw material in their Cenvat credit account and having shown the utilization of the same, heavy duty stands cast on the Revenue to establish that such raw material was not the one which was covered by invoice in question and stands procured by the assessee from any other source. There is neither any allegation much less any evidence to reflect upon the procurement of raw material from any outside source.
In view of the above, they find no merits in the Revenue’s stand. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief.
 
Decision:-Appeal allowed.
 
Comment:-  The analogy of the case is that Evidence collected by Revenue is only in the shape of statements of third party. It is well settled that in the case of clandestine allegation, the onus to establish the same is on the Revenue, which is required to be satisfied by production of sufficient, tangible and positive evidence.Uncorroborated statements of third party cannot be adopted as an evidence, without corroboration from an independent source though such statement can be of some value but cannot be solely relied upon for the purpose of holding against the assessee. It is not only impractical but impossible to manufacture the final product without raw materials. Appellants having reflected the raw material in their Cenvat credit account and having shown the utilization of the same, heavy duty cast on Revenue to establish that such raw material were not the one which was covered by invoice and stands procured by assessee from any other source.

Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com