TMI Blog2008 (3) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... enkateswaralu Rs. 20,000/- 3. E/776/2006 B. Veera Reddy Rs. 1,00,000/- 4. E/777/2006 N. Krishna Mohan Rs. 5,00,000/- 5. E/778/2006 STV Raghunadha Rao Rs. 1,00,000/- 6. E/779/2006 B. Ramakrishna Reddy Rs. 1,00,000/- 3. The brief facts of the case are as follows : The assessees manufactured ordinary Portland Cement and Clinker which are excisable. In terms of Notification No. 5/99 - Central Excise dated 28-2-1999 as amended, they had availed concessional rate of duty for cement for the clearance of 99,000 MT. The above-mentioned notification is available for mini cement plants based on their installed capacity. The Departmental Officers carried out investigations into the affairs of the assessee s unit. The investigations revealed various irregularities. The irregularities are : (i) In terms of the installed capacity the assessees are not entitled for the benefit of the notification. Hence, they are required to pay full rate of duty. (ii) There is clandestine clearance without payment of duty. (iii) There was irregular availment of Cenvat credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e already been given in the tabular column supra. 6. The assessees as well as Revenue are aggrieved over the impugned order. Even though the demand in the show cause notice was huge, the Commissioner did not confirm the demand in the show cause notice in its entirety. Moreover, he has held that the appellants are entitled for the benefit of notification 5/99-CX available for mini cement plants. He has also not imposed personal penalty on Shri K. S. Rama Rao, M.D of M/s. Torus India Ltd. The assessees are also aggrieved over the impugned order on grounds of incorrect computation of the demand. They have also challenged the demand on account of clandestine clearance. The denial of Cenvat credit is also under challenge. The personal penalties imposed are also contested. We shall deal with the appeals of the assessees and the Revenue separately. 7. Assessees Appeals : Shri B.N. Gururaj, learned Advocate, appeared on behalf of the assessees and Ms. Sudha Koka, for the Revenue. 8. The learned Advocate made the following submissions : I. Wrong Computation of duty demand : The Adjudicating Authority has held that the appellant is entitled for the concessional rate of duty appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. Modern Plastic Corpn. and hence, appellant is not liable to pay duty. As per notice, this quantity was 2155 MT. Demand Rs. 5,52,472/-. (ii) 156 MT cement sold to Sri Lakshmi Enterprises. Appellant has contended that 131 tons were sold by Modern Plastic and 25 tons by Sri Chakra Marketing and hence, appellant is not liable to pay duty. Demand Rs. 54,600/-. (iii) 290.5 MT sold to Kamakshi Agencies. Appellant has contended that 117 tons were sold by Modern Plastic through Sri Chakra Marketing and 151 tons were sold by the appellant. Demand Rs. 1,04,125/-. (iv) 6361.5 tons supplied to various assorted parties. Demand Rs. 23,25,850/-. The total demand comes to Rs. 30,37,050/-. It was argued that the brand name Sri Chakra is the one used by the assessees. The brand name Chakra Gold is used only on cement procured from grinding units. At Para 13.3 of Order-in-Original, the Commissioner acknowledges that Laveena Marketing and Lakshmi Enterprises received Chakra Gold brand cement. The above supplies were of cement manufactured by Grinding Units and not by the appellant. Payments were received directly by the appellant for the supplies inasmuch as the grinding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this issue should be remanded for detailed examination of each removal and decision thereon. (iii) A demand of Rs. 50,348/- is on account of the recovery of credit taken on cement returned as hardened and used within the factory for road and repair work. The duty payment particulars were furnished. But, the Original Authority ignores and confirms the recovery of credit of Rs. 50,348/-. (Para 12.2 of Order-in-Original). VI. General defence : The duty demand is based on alleged clandestine removal of over 20,000 tons of cement during the period of dispute. But, there is no unexplained consumption of raw materials, power or undisclosed capacity of the plant. In fact, upholding of exemption claim itself shows that production of cement has been within the capacity of the appellant s plant based on grinding mill. In other words, the appellant had no capacity for manufacturing the quantity alleged to have been removed clandestinely. The entire case is based on discrepancies or inconsistencies in the records - some actual, but most of them perceived. Impugned order repeats the surmises and conjectures in the notice. It is well settled law by the decisions of this Bench that mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-objection in this matter. 11. The grounds of appeal of the Revenue are as follows : I. Eligibility of SSI Exemption : The SSI Exemption will not be available to unit if its installed capacity is more than 900 TPD. The Commissioner has given the benefit to the assessee based on the certificate issued by the Commissioner of Industries, Hyderabad. In terms of the said certificate, the installed capacity is only 786 MT/day. Revenue s objection is that the certificate was issued on 19-5-2005. The inspection of the unit was carried out by the Commissioner of Industry on 11-2-2005. According to the Committee which inspect the plant, the installed capacity is 768 MT per day and not 786 MT as stated in the order. In any case, the period of dispute is from February 2000 to 2nd September 2004. Therefore, it appears inappropriate to rely on an inspection, which was done in February 2005. The Show Cause Notice has elaborately produced irrefutable evidence to the fact that the expansion had taken place in 1995-1996 itself and that the assessee has made an attempt to hoodwink the Department by trying to show false evidences to the effect that the expansion was carried out in 2002 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of lorry placement books recovered from M/s. Sai Ram Transport revealed that they cleared cement without invoice. Shri M. Radha Krishna, Managing Partner of M/s. Sai Ram Transport, in his statement, confirmed that they are issuing freight letters for the placement of lorry with assessee, that almost all the vehicles placed by them will be loaded and rarely cancelled, that the lorry transaction slips are for the transactions of transportation undertaken. Therefore, it appears that there was actual clearance of cement without payment of duty in cases where there were lorry-loading slips without corresponding Central Excise invoices. These facts have been brought out in the Show Cause Notice. The Commissioner has ignored these facts. Therefore he has erred in dropping the demand of Rs. 7,67,200/-. Reliance was placed on the decision of the Supreme Court in the case of Collector of Customs, Madras and others v. D. Bhoormull [1983 (13) E.L.T. 1546 (S.C.)]. The broad effect of the application of the basic principle underlying Section 106 of the Evidence Act to cases under Section 167(8) of the Act ibid is that the Department would be deemed to have discharged its burden, if it add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clinker, than what has been accounted for and cleared through their official accounts. The show cause notice has brought out evidences to the fact that the assessee has shown production of clinker in their records even on days when the kiln was closed. The respondent has not only admitted this fact in his statement but also admitted that there is variation in actual production and the quantities shown in the records. The show cause notice has brought out incontrovertible evidence to the fact that the assessee has not accounted for vital inputs like Gypsum, packing material etc. The Commissioner has not given his findings on any of the above charges but has merely rejected the demand. The assessee has not brought out any evidence to the satisfaction of the department that the money received by them was actually working capital loan. The Commissioner has merely relied on the defence of the assessee at the cost of actual evidences put forth by the department. V. Irregular availment of Cenvat credit and clandestine clearances : The show cause notice has alleged that the assessee has availed Cenvat credit irregularly to the tune of Rs. 30,73,577/- on rejected clinker/cement, cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty on Shri K.S. Rama Rao. 12. Grounds of Cross-Appeal : The assessee has also filed cross-objections under Section 35B(4) of the Central Excise Act, 1944 urging the following points : (i) In Revenue s appeal non-application of mind is writ large. The Revenue in their foremost ground refers to the department seeking to deny the SSI Exemption. Revenue is unaware of the contents of its show cause notice. Neither is the assessee working under any SSI Exemption notification, nor has it ever claimed to be a SSI. In the entire show cause notice there is not even a whisper about the assessee having claimed SSI Exemption, or of the department seeking to deny SSI Exemption. This ground wholly traverses beyond the scope of the show cause notice and hence, is liable to be rejected. (ii) Another ground of the Revenue is that the assessee is disentitled to SSI Exemption on account of clearing cement under the brand name not belonging to them. This ground is irrelevant. When the show cause notice itself does not propose denial of SSI Exemption and when the assessee has not claimed the SSI Exemption, to deny a unclaimed exemption on the ground of using another person s brand i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that it is wrong to state that the assessee has not claimed the ownership of the brand name Chakra Gold . It is merely a case of owning an unregistered brand name. (vii) The ratio of Rukmani Pakkwell case, 2004 (165) E.L.T. 481 (S.C.), has been correctly distinguished inasmuch as that was a case of a SSI clearing goods under the partial brand name of another person. In this case, the assessee had not manufactured under another person s brand name. Instead, the assessee s brand name has been used by others. The assessee submits that they have been using the brand name Chakra Gold even before the coming into existence of MPC. It would be absurdity to suggest or argue that the assessee had been using the brand name belonging to a owner who was not in existence at the time of such user. (viii) There was no clandestine clearance against transport documents. The Original Authority had correctly held that there had been no clearances against the transport documents as the said documents were merely for planning the placement of the trucks at the disposal of the assessee. Entire demand is based on the deposition of the Manager of Transporter Company that the trucks had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty. (e) SCCL have cleared cement in the name of grinding units, viz., M/s. Modern Plastic Corporation, M/s. Prakasam Pulverisers, M/s. Tirumala Pulverisers, M/s. Ganesh Industry etc. without payment of duty. (f) SCCL have cleared cement by misdeclaring the weight without payment of duty (g) SCCL have cleared clinker/cement by non-accountal of production without payment of duty. (h) SCCL have irregularly availed Cenvat credit to the tune of Rs. 10,52,000/- on grinding media without receipt. (i) SCCL have irregularly cleared Cenvat credit availed inputs without reversal of credit availed on non-returnable gate passes. 14. After adjudication, the Commissioner held that SCCL are entitled for the benefit of the exemption notification based on their installed capacity. (a) Therefore, demand of Rs. 7,25,84,075/- + Rs. 1,04,68,766/- on ground of violation of condition of exemption notifications was dropped. (b) He dropped the demand on account of Cenvat credit on returned goods amounting to Rs. 3,07,357/-. (c) He dropped the demand of Rs. 7,67,200/- on alleged clearance based on transport documents. (d) He dropped demand of Rs. 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. Procem Engineers India Pvt. Ltd. who undertook the expansion and the statements of Shri V.A. Dubale Managing Partner of Procem and Shri Sainath, Proprietor of M/s. Clair Consultants. The Commissioner considered the reply given by the assessee to the allegations in the show cause notice. He has accepted the contentions of the assessee that the installed capacity has to be reckoned only with reference to the cement grinding capacity and not on kiln capacity. It is well known that in order to produce cement first clinker is produced. This clinker is pulverised in the grinding mill to make cement. Therefore, the grinding capacity indicates the actual installed capacity of the cement plant and not the kiln capacity. The Commissioner has clearly given a finding in Para 10.4 of the impugned order that the installed capacity of the kiln only was enhanced to 1200 TPD. This point has not been disputed by SCCL. However, they contended that the installed capacity as appearing in the exemption notification has to be reckoned only with reference to the cement grinding capacity alone and not relatable to kiln capacity. In order to decide this point, the Commissioner relied on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable for the period in dispute which is February 2000 to 2nd September 2004. This objection of the Revenue can be sustained only if there is any evidence to show that during the relevant period the grinding capacity was more than 900 TPD and later the assessee made changes to show that the capacity was only less than 900 TPD. In the absence of such evidence it is not possible to interfere with the decision of the Commissioner. Therefore, we uphold the decision of the Commissioner in holding that the installed capacity during the relevant period is less than 900 TPD. Hence, Revenue s appeal on this point is dismissed. 18. The Commissioner has dealt with the issue of brand name. The contention of the department is that the assessee is using the brand name Shri Chakra Gold used by M/s. Modern Plastic Corporation. On this ground, the show cause notice proposed denial of the benefit of the exemption notification. This point has been dealt with by the Commissioner in Para 10.12 of the impugned order. Even before Modern Plastic Corporation came into existence, the assessee was using the said brand name. When that is the case, the Commissioner has concluded that it cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, credit was taken only after the Range Officer conducted physical verification and certification to the effect that the goods have been received back. Revenue has not accepted the finding of the Commissioner. After the impugned order has been passed, it is seen that Revenue requested for submission of the verification reports issued by the Range Officer. In the grounds of appeal, it has been stated that the assessee has submitted intimation in respect of 101 invoices and actual verification certificate is available only in respect of 80 invoices. Therefore, a point has been made that rejecting the entire demand is incorrect and bad in law. If the Range Officer had not verified the receipt of returned goods even after the assessee informed the department, that fact cannot be used against the assessee and it is not correct to come to a conclusion that the assessee had taken irregular credit. In our view the Commissioner s decision in dropping the demand to the tune of Rs. 3,07,357/- is correct and we uphold his decision. Revenue s appeal on this point is dismissed. 21. In Para 12 of the OIO, the Commissioner has confirmed that the credit availed to the tune of Rs. 50,348/- on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee supplied 156 MT of cement to M/s. Sri Lakshmi Enterprises. It was also alleged that SCCL supplied 268.5 MT of cement to M/s. Kamakshi Agencies. There was also allegation of supply of 6361.5 MT of cement to various assorted parties. After examining the evidence, the Commissioner has held the allegations to be sustainable. The total demand based on CPU comes to Rs. 31,15,975/-. The finding of the Commissioner is seriously challenged by the assessee. 23. The assessee contended that the demands based on the assessee s CPU recovered from Modern Plastic cannot be sustained as it was a spare computer not regularly used by the assessee s accounts department. The data in that computer was not authentic for excise purposes. It was contended that the said CPU was used by the assessee s trainees for practice of data entry and hence the information found therein could not be relied on. Data in the computer had been kept by the department without asserting appellant s authorized person. No printouts had been taken from the computer. Therefore, this information could not be the proper basis for alleging clandestine removal. The correctness of the content of the computer data ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is corroboration of the details contained in the major account recovered from CPU as explained by Shri M. Venkateswarulu. Further, corroboration is from C.H. Shankar Rao, DGM of the assessee who stated that they had made clearances to LMPL but failed to produce any invoice evidencing official clearances. The assessee pointed out that same mistake has crept in respect of the quantity of cement cleared to LMPL. The allegation in the show cause notice is that 2155.5 MT of cement was cleared to LMPL without invoice by the assessee. After considering the submissions of the assessee, the Commissioner has come to the conclusion that 1578.5 MT of cement was cleared to LMPL without payment of duty. He has rejected the assessee s contention that the goods were supplied by MPC on the ground that the assessee did not substantiate by producing details of invoice numbers or clearance of the goods by MPC. He has also taken into account the facts that the amounts collected through cheques were finally repatriated to SCCL accounts. If the said transactions pertained to MPC, then there is no reason for them to be reflected in the ledger account of SCCL. Therefore, he has held that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding anything contained in any other law for the time being in force, - (a) a micro film of a document or the reproduction of image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a computer print out ), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any of the contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely :- (a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the O-I-O, the Commissioner has not considered the evidence produced with regard to 151.5 tones supplied by the appellant against duty paying documents. In respect of 117 tones supplied by Modern Plastic, the demand has been confirmed without any finding. While the show cause notice refers to 22 tons, the Commissioner has confirmed a demand on 32 tons. In respect of clearances of 6361.5 MT the Commissioner has confirmed the duty without giving any finding in Para 13.8 of his order. With regard to the clearance of 6311.50 MT the assessee had given the following information in their reply to the Commissioner. Annexure - D Sl. No. Brief Particulars Qty. (MT) Amount Rs. Brief reply Our Remarks SCN Para No. Page Nos. (a) Md. Mohinidduin 1165.000 4,66,000 SCCL has not made any clearances Qty 1110 mt supplied by MPC and 55 mt by Kirnanmai Miryalaguda 37 (b) G. Brahamaiah 210.000 82,125 SCCL has supplied 52.5 tons only and duty suffered vide Excise Gate Pass No. 9982 dated 27-11-02; 9946 dated 3-11-03; 7922 dt. 29-8-03- 10 mt. 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and amount is received by the assessee for adjusting the dues for the clinker supplied by them. In any case, the department has not adduced any incontrovertible evidence to show that the clearances from the data recovered from CPU relate to the cement manufactured by the appellant. In view of these facts the demand of Rs. 31,15,975/- cannot be sustained. Hence, we set aside the said demand. Clearances on account of Second Sales : 31. The show cause notice proposed the following demands on account of clearances made as second sales. Annexure D3 amount of Rs. 10,30,002/-. Annexure D7 duty on clearances made to M/s. Ganesh Industry Rs. 35,86,450/-. Annexure D5 duty for clearances made to M/s. Aurobindo Pharma Rs. 10,64,427/-. These issues have been dealt with by the Commissioner from Paras 14-17.2 in the impugned order. The assessee s contention is that they had supplied clinker to grinding units who manufacture cement with the brand name of the assessee, namely Shri Chakra Gold . The assessee purchased the said cement from various grinding units and later they sold them. Therefore, according to the assessee there is no duty liability on them, because they did not manufacture th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived by them from SCCL, the clearances on the parallel sets were in fact made from the factory of SCCL at Narasimhapuri without accountal and without payment of duty. The assessee denied that cement was cleared with double invoices to various parties. They stated that the commercial invoices raised at the head office for the second sale of cement from the grinding units cannot be the basis to come to a conclusion that there has been a clandestine removal of cement by them. They also stated that if at all the demand has to be made the same has to be made directly against the Prakasham Pulverisers and not against them. Further, they submitted that the practice of their company is to keep the Central Excise gate pass for the clearance made directly from their factory and commercial invoice for the second sales of cement purchases from outside. The Adjudicating Authority did not find the explanation of the assessee satisfactory. It is not clear as to why the parallel invoices were raised at the Head Quarters of SCCL. SCCL did not dispute the genuineness of the documents, but only stated that the Pulverising units should be made answerable and they are not required to state anything as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee s contention that the transactions relating to the second sale are in respect of traded goods and not manufactured by them. The assessee has produced the purchase and sale account of bought out cement. Schedule to balance sheet also shows purchase and sale of cement. This has not been examined by the Commissioner. The Original Authority, according to the assessee has ignored the distinction between excise invoice and commercial invoice raised for transaction not involving payment of duty. In respect of second sales, since the goods were either duty paid or cleared under SSI Exemption by the grinding units, the assessee had raised commercial invoice from their head office. This has been grossly misconstrued by the Revenue as parallel invoice. In all, there are three demands with regard to Second Sales. A demand of Rs. 10,30,002/- is in respect of Second Sale of cement procured from grinding industries. The second demand of Rs. 10,64,427/- relates to the demand on supplies to Aurobindo Pharma Ltd. The third demand of Rs. 35,86,450/- relates to Second Sales of cement to Ganesh Industries. In respect of sales to Aurobindo Pharma, the appellant had produced along with reply invoice-w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty. In order to establish clandestine clearances clinching evidence is required. The explanation of the assessee regarding the practice of second sale is satisfactory. It is their contention that apart from manufacture of clinker and cement they also engaged in trading activity and the second sales relate to the sale of the cement purchased by them from the grinding units and that they raise the commercial invoice from their head office. In respect of such second sales, we do not find if necessary on the part of the assessee to raise excise invoice. Moreover, the investigation has not brought out any evidence of clandestine clearance of cement from the factory premises of the appellant. In view of this we set aside the demand on account of the second sales. 35. Demand on account of excess clearance : There was an allegation that the cement book recovered from the factory premises under Panchanama contains details of difference in the weight of the cement bags as per the invoice and as per weighment card. From the above difference it was revealed that the assessee cleared a quantity of 24.44 MT of cement in excess of the invoiced quantity during the period from 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not matching with the production figures maintained in any of the other production records such as Daily Power Consumption analysis Report, Kiln Log Book etc. maintained by the production and Electrical departments of SCCL. SCCL reflected production of clinker even when the kiln was closed. On verification of production records, it is observed that the stock balances of clinker on many days were not sufficient enough for producing cement as shown to have been produced as per RG 1 Register. II. SCCL adopted a conversion ratio of 1.6 to arrive at the production figure. However, from the lab analysis records, the conversion factor is less than 1.54. Further Sri Dr. Sainath, consultant to SCCL, who had conducted. III. Modification work during 2000 to 2003, stated the same to be 1.55. IV. Further verification of accounts of inputs and packing materials, it is observed that SCCL did not account full quantity of the inputs and packing materials received by them. V. The ledger accounts of SCCL for the years 2000-01 to 2003-04 revealed that that SCCL had showed substantial amounts of cash receipts in their books of account in contravention of established accounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant availed Cenvat credit to the tune of Rs. 10,52,000/- towards receipt of 295 MT of grinding media. The credit taken is irregular because the receipt of the quantity has not been reflected in the grinding media register. The Commissioner has held that the department has conclusively proved that the subject material has not been received into the factory. Therefore, he has held that the credit done amounting to Rs. 10,52,000/- is irregular and has been availed by suppression of facts with intent to evade payment of duty. In Para 21.2 he has given the reasons for holding the credit to be irregular. He has perused the register relating to grinding media and observed that the pattern of the consumption does not justify purchase of 295 MT in February, 2003. The assessees have been purchasing anywhere between 30 to 60 MT. He has also observed that receipt of the grinding media by the unit, while the same lorry is in transit clearly raises eye brows and mere explanation of the assessee is that the same is taken into stock after quality control verification cannot answer the discrepancy pointed in the inward entry time, which is made at the factory gate while the goods enter into the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treating the same as removal of input. On a careful consideration of the issue, we find that the supplier has not denied the supply of grinding media to the assessee. The assessee has also not denied the receipt of same. Due to some dispute regarding the quality of the material, the assessee has delayed the payment. So long as duty has been paid on the material, credit cannot be denied. The Commissioner has observed that it is an undisputed fact that duty had been paid on 295 tons of grinding media by M/s. Torus India. Moreover, the disposal of large quantity of worn out media also shows the procurement of huge quantity of fresh grinding media. Therefore, the denial of Cenvat credit on the grinding media is not justified. Hence we set aside Commissioner s order confirming demand on grinding media. (b) Cenvat Credit on inputs cleared on non-returnable gate passes : An amount of Rs. 6,34,994/- was alleged to have been availed as Cenvat credit irregularly. The allegation is that the assessee had cleared certain inputs on which Cenvat credit was availed, on non-returnable gate passes, without reversing the Cenvat credit so availed as stipulated under Rule 3(4) of the Cenvat Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total demand of Rs. 88,05,408/-, in this final order we had confirmed only a demand of Rs. 8,554/- which relates to the demand on account of excess clearance based on cement book. We have also set aside all the demands pertaining to irregular availment of Cenvat credit. In view of this position, there is no justification for imposing any penalty on any of the appellants. In these circumstances, we set aside the penalties imposed on all the appellants. The Revenue has further appealed on the decision of the Commissioner in Para 24.6 to drop a penalty proceeding against Shri K.S. Ram Rao, M.D. of Torus India. We find that the Commissioner has observed that it is an undisputed fact that duty has been discharged by Torus India on the 295 MT of grinding media. In such circumstances, the Commissioner thought it fit not to impose any penalty on Shri K.S. Ram Rao. In our view his decision is correct. In any case we have set aside Commissioner s order of recovery of Cenvat credit in respect of the grinding media received by the appellant. Hence, Revenue s appeal has no merits and the same is rejected. 43. Summing up, - I. We uphold the Commissioner s order extending the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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