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2021 (9) TMI 1260 - AT - Central ExciseClandestine removal - removal of input as such in the guise of Waste & Scrap - removal of Film grade granules as such clandestinely which is not capable of being used in the manufacture of final product - shortage of stock - HELD THAT:- The demand was raised on the removal of granules as such on the basis of Annexure C on the ground that the granules are of film grade which cannot be used in the manufacture of the final product of the appellant - there is also evidence i.e. Diaries recovered from the appellant’s office on the basis of those diaries demand was raised taking the evidence as invoice of waste and scrap which was prepared for removal of granules under the guise of waste and scrap. Therefore, there is a force in the submission of the learned counsel that once again demand of the same removal was made showing in Annexure C for which the demand was computed in Annexure E1. However, there is a duplication of demand in respect of 10 Invoices which are appearing in Annexure A as well as Annexure C since the department has made out the demand even for Annexure C, considering Annexure B therefore, it is implied that the Annexure A has been considered in Annexure B that is the reason that no separate demand was raised in Annexure A. The 10 invoices which are common in Annexure A & C demand in respect of those invoices needs to be reduced from the total demand of ₹ 13,31,112/-. As regard the remaining demand of ₹ 4,41,142/-, it is found that the representative of the appellant have given a categorical statement that the film grade granules are not used in the manufacture of their final product and rather the film grade granule was not received in the factory therefore, it is clear that it was sold directly. This statement has not been retracted nor the appellant has cross-examined the witness. Therefore, on the basis of this statement it is clear that the granules for which Cenvat amount of ₹ 4,41,142/- the same quantity was not used in the manufacture therefore, Cenvat Credit on this ground is not available to the appellant. Hence, the demand of ₹ 4,41,142/-, interest and penalty is upheld. Appeal allowed in part.
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