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2014 (2) TMI 1012 - AT - Central ExciseDenial of CENVAT Credit - Clandestine removal of goods - After detailed investigation, the Revenue Officers on scrutiny of the records carne to a conclusion that the respondent had removed their finished goods clandestinely without payment of duty and they have availed ineligible Cenvat credit of the petrochemical products the quantity of which was short received in their factory premises - Imposition of equivalent penalty - Held that:- As regards the denial of the Cenvat credit to the respondent on the inputs which were received short, I find that the assessee in their appeal against the very same impugned order had contended that the confirmation of demand on this ground of even Rs. 38,250/- is incorrect. The said appeal was allowed by this Bench vide final order dated 4-5-2012 wherein the Bench has held that there is no case for upholding the order passed by the Commissioner (Appeals) for denial of Cenvat credit on the quantity of inputs which were received short. Conversely it would mean that the Bench has accepted the findings of the first appellate authority that the loss of the inputs being marginal, the Cenvat credit should not be denied to an assessee. Respectfully following the same; I hold that the Revenue’s appeal to the extent it challenges the appeal of the first appellate authority on this point of denial of Cenvat credit for short receipt of the inputs is liable to be rejected. In the Order-in-Original, the adjudicating authority has admitted that as far as the role of buyers is concerned, there is little evidence from the buyers’ end to corroborate that the goods despatched were not under the proper duty paying documents and also noted that Revenue would not bring corroborative evidences to substantiate their case. If these are the findings of the adjudicating authority as to there being no corroborative evidences, then, the Revenue has failed to bring home charges against the respondent, as has been correctly held by the first appellate authority as per the findings reproduced hereinabove. I find that the first appellate authority has correctly come to the conclusion that there is no evidence of clandestine removal of the goods by the respondent herein. In view of this, the Revenue’s appeal against the main assessee fails. Since the Revenue’s appeal against the main assessee fails, the consequent appeals of setting aside of the penalties on other two individuals also fail - Decided against Revenue.
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