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2013 (2) TMI 82 - CESTAT KOLKATANon payment of excise duty and wrong utilization of cenvat credit on input packing material - demand confirmed and equivalent penalty u/s 11AC r.w.r. 13 of CCR 2002 - broken, damaged and wastage biscuits generated during the course of manufacture of biscuits were liable to excise duty - Held that:- As decided in Commr. of Central Excise, Bhopal Vs. J.B. Mangharam Food Ltd. [1999 (8) TMI 267 - CEGAT, NEW DELHI] broken/waste biscuits generated during the course of manufacture of biscuits are non excisable goods and hence not liable to excise duty. That in the show cause notice as well as in the impugned order, there is no allegation that biscuits of goods quality were manufactured and cleared during the said period. Similarly, it is also not in dispute that the input packing materials received by the appellant were used in the course of manufacture of biscuits but got damaged and the demand was also issued for reversal of cenvat credit availed on the input packing material on the basis of Variance statement. The appellant had claimed that the input packing materials were used in or in relation to manufacture of finished goods and during the course of manufacture of finished goods, got damaged and in that context, they have submitted that the entire quantity of input packing materials could not be found with the finished goods. There is no contrary evidence adduced by the Department that the input packing materials were not used in or in relation to the manufacture of finished goods except the Variance statement. In absence of evidences to the effect that these inputs were not used in or in relation to the manufacture of the final product and the claim of the appellant that these were used and got damaged during the process of manufacture of finished goods being plausible and acceptable and accordingly, CENVAT Credit cannot be denied on the same - Commissioner (Appeals) order is devoid of merit and accordingly the same is set aside - in favour of assessee.
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