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2020 (1) TMI 541 - AT - Central ExciseClandestine removal - shortage of stock - denial of CENVAT Credit - Non-inclusion of sales tax collected under deferment scheme - HELD THAT:- This issue has been clarified by the CBEC Circular No.378/II/98-CX dated 12.03.1998 wherein it has been clarified that in respect of deferred payment of sales tax for a particular period and the grant of incentive equivalent to sales tax payable by the unit. Thus the sale tax paid has been clarified to be excluded from the assessable value of the goods. The stock verification report was not conducted by the visiting officer, but simply the statement was asked to be prepared by one of the employee of the appellant namely, Shri Suman Kumar Mishra, Excise Clerk along with Shri Manoj Kumar Pandey and Shri Uday Kumar, all employee of the main appellant (BRIL). As the stock verification report was not done on the physical weighment basis and even not verified by the Central Excise officer as is evident from the stock verification report, its evidentiary value looses its significance, especially in view of the fact that the RG-1 Register and Form-IV Register were incomplete after 31.08.2006. The appellant has taken Cenvat Credit on the basis of prescribed document as per Cenvat Credit Rules and therefore the impugned order is not correct in denying the same. Reliance placed on the various statements of the different persons, which were recorded during the course of investigation - HELD THAT:- The Commissioner has not examined the maker of the statements and not permitted the cross-examination of those persons by the main appellant in spite of being specifically requested for. This is in clear violation of statutory provisions as contained in section 9D of Central Excise Act - lot of reliance has been placed on the record of transporter M/s.Rush Cargo Movers. However, this is third party evidence, which cannot be relied without corroborative evidence. Appeal allowed - decided in favor of appellant.
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