2018 (10) TMI 81 – CESTAT MUMBAI – TMI – CENVAT credit – allegation of fraud and tampering of evidence is raised against the appellant – section 73 of the Indian Evidence Act.
–
Held that:- As per section 73 of the Indian Evidence Act, comparing of handwriting and signature can be done by a court but even such requirement would not arise in the instant case since to a man of ordinary prudence, two different handwriting are visible in those two bills and it appears that labour charges have been purposefully inserted in the bills to cover the services availed under the Cenvat Credit Rules – Going by the unethical practice adopted by the appellant, it can be said that the same would amount to fraud within the definition of IPC.
–
The documentary evidence produced before the Court have no connection on the actual transactions made by the appellant but those appear to have been are created for the purpose of meeting the requirement of law – fraud established – Appeal dismissed. – E
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Those services availed and grounds of refusal are enumerated in the order-in-original. Broadly they are – 1) Invoices of certain services were raised in the name of appellant head office; 2) Services of labourers used for civil work in shifting of machinery; 3) AMC for maintenance of Air conditioner, refrigerator and computer for canteen; 4) Garden services [held admissible by the Commissioner (Appeals)]; 5) Housekeeping and civil activities during the period October 2011 and May 2015. Order-in-original exempted housekeeping services in its totality and reduced services of labour utilised for shifting of machinery from ₹ 36,224/- to ₹ 29,550/- and that portion was paid by the appellant. Rest of demands were confirmed which was challenged before the Commissioner (Appeals), Thane GST and CX, Mumbai who allowed cenvat credit for the entire amount of ₹ 31,195/- availed against gardening services and confirmed the duty demand etc. in respect of rest of services. 3. During
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
le for availment of cenvat credit against such services availed at the factory for which he prays for setting aside of the order passed by the Commissioner (Appeals) and concerning part refusal of credits. 4. In response to the submissions of the appellant, ld. AR for the department submitted that appellant obtained licence as input service distributor but had not followed the distribution pattern required under the Rule for transfer of goods and services from the Head office to the factory unit for which it was rightly held by the Commissioner (Appeals) that technical mistake on the basis of provision of Rule 9(2) of the cenvat credit is not remediable and the credit taken back by the assessee on the basis of ISD challan no. 1003 dated 02.05.2013 was not the subject matter of show-cause notice. On the basis of this observation, the ld. AR contended that such irregularity was sought to be purposefully remediated in raising ISD challan after the irregularity was pointed by the departmen
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
does not have direct relation to the input availed of against modernisation/ renovation. 5. Giving a pause at his argument, I have inspected the sample invoices for my appraisal and exhibit A, B and C annexed to the appeal memo since allegation of fraud and tampering of evidence is raised against the appellant. As it appears to the naked eye, in both bills raised by M/s. G. Raju, Engineering Works contractor on 06.09.2010 and 06.3.2011, original description in the particular column is machinery shifting from Washind to Goa but in the first copy of bill labour charges are inserted in a different handwriting at the end of the description and in the second bill, it is inserted also in another handwriting at the beginning of the description column. 6. As per section 73 of the Indian Evidence Act, comparing of handwriting and signature can be done by a court but even such requirement would not arise in the instant case since to a man of ordinary prudence, two different handwriting are visi
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tion of IPC. It has been held in numerous judicial pronouncements of the Apex court, the leading case being reported in AIR 1994 SC 853, in the case of S.P Chengalvaraya Naidu vs Jagannath that a person whose case is based on false suit has no right to approach the Court. He can be summarily thrown out at any stage of litigation. 8. I find it proper to reproduce the relevant para of the said judgment. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Propertygrabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. (highlighted t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =