TMI Blog2017 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture thinner. We further find that there is evidence on record that the appellant have deputed manpower for production and there has also been electricity consumption regularly. The SCN is not sustainable, save and except the demand of ₹ 8,984/-, towards the shortage of inputs found at the time of inspection - appeal allowed in part. - E/1152 & 1153/2008-EX[DB] - A/56676-56677/2017-EX[DB] - Dated:- 20-9-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Shri S. Jaikumar Kartik Jindal, Advocates - for Appellant(s) Shri H.C. Saini, DR - for Respondent(s) ORDER Per: Anil Choudhary The appellant M/s Dee Chem Pvt. Ltd is registered as manufacturer of formaldehyde and thinners falling under Chapter sub Headings 2912 and 3814 of the Schedule to CETA, 1985 respectively. The raw materials for the manufacture of formaldehyde and thinners are Methanol, Organic Composite Solvent (OCS for short), stabilizers, etc. Whereas the manufacturing process of formaldehyde involves highly technical oxidation process involving heating, vaporising with oxygen, reaction with silver catalyst etc. The manufacture of thinn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, than the credit availed. A portion of the duty has been paid through PLA. The appellant filed ER-1 and RT-12 returns for the relevant months showing payment of duty through PLA as well as from Cenvat Credit. Copies of bank statements showing payments were made for inputs, through bank channels, and the payment for sale of final products were also received through banks. The Adjudicating Authority had not considered this evidence. The appellants paid duty on the final product, which is manufactured out of the disputed inputs. In the circumstances, we find it is a fit case for reconsideration by Adjudicating Authority. The impugned order is set aside and the matter is remanded to the Adjudicating Authority, after waiving the pre-deposit of duty and penalty. The Adjudicating Authority will decide the matter after granting opportunity of hearing to the appellant. 4. The learned counsel for the appellant urges that upon remand the learned Commissioner vide the present impugned order dated 12 February, 2008, have once again confirmed the same amount for recovery of entire Cenvat Credit along with interest and also imposed equal amount of penalty. Further penalty under Rule 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had for transporting OCS from Amkap, engaged the services of few goods transport agents, namely M/s Deep Raodlines, M/s Balram Transport Company, etc. Amkap who are situated at Raebareli UP, procured the raw material from Kandla, Gujarat. Generally the tankers from Gujarat on which they had received their raw materials were used to transport the OCS to the appellant's factory at Bhiwadi, Rajasthan. Due to the fact that the appellant's factory is enroute from Raebareli to Kandla, for economy of operation, the appellant used to coordinate mainly with the agents, who arranged vehicles, preferably from the returning vehicles from Raebareli to Kandla and/or other vehicles from the open market, whichever is economical. There could be a few instances, wherein the transport agents have engaged the return vehicles, on a reduced tariff without the knowledge of the transport owner and issued LR/GR not corresponding to the said vehicle. This is a common prevalent practice in the transport business. The learned counsel further reiterated that this different trade tactics by the agents, by any means, cannot take way the fact of actual transportation of goods and receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand order. The learned Commissioner have erred by proceeding to confirm the allegations in the SCN and have replicated the earlier Order-in-original. Thus the impugned order is cryptic and have been passed by way of non-application of mind. Moreover, the directions of this Tribunal to consider the evidentiary value of the payments effected through banking channels, have not been considered properly, which is evident from the observations of learned Commissioner in Para-28.3 of the order As far as their plea that the payments were made for inputs through banking channel and the payment of sale of final products was also received through bank is concerned, I am of the view that such payments can be suggestive that some transactions might have taken place but these payments cannot be considered as the certificate to the effect that purchases/sale transactions have actually been taken place . Accordingly the learned counsel prays for setting aside the impugned order and allowing the appeals with consequential benefits. The learned counsel strongly place reliance on the ruling of this Tribunal in the case of Ajinkya Enterprises v/s CCE, 2013 (288) ELT 247 (Tri.- Mumbai), wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to whom appellant has made sales of the thinner on payment of duty, they were not found in existence. The learned Commissioner also observed that during the period in question appellant have cleared thinner to the tune of ₹ 2347.52 lakhs and against the so-called clearances of thinner, the appellant have paid meager amount of 21.03 lakhs from PLA only. This amount is less than 1% of the value of the so-called clearances of the thinner. Similarly, they are filing ER-1 returns also do not mean that the thinner was manufactured out of the disputed solvent. 9. We have considered the rival submissions and also perused the records. This Tribunal vide Final Order dated 09 July, 2007 (in the first round), had remanded the case back to the Commissioner with a direction to consider the evidence relating to the bank statement and/or transactions showing payment for inputs and receipt of payment for sales through banking channel. In the said order this Tribunal had given clear finding that the appellants had paid duty on the final product which is manufactured out of the disputed inputs. This finding of the Tribunal have not been challenged by Revenue in further appeal. Thus it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
