Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2009 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (7) TMI 231 - AT - Central ExciseDenial of Modvat credit in respect of modvatable inputs found short than recorded balance and confirmation of demand in respect of final product allegedly cleared without payment of duty - shortages due to excess burning loss – statement that the shortages were on account of excess burning loss more than 5%, claimed by them cannot be appreciated inasmuch as such burning loss occurs after the raw material stand issued from RG-23A Part-I. As such, even if the burning loss was more than the availed burning loss, the same would not have resulted in shortages of the raw materials as against the entries in RG-23A Part-I. It is to be kept in mind that the shortages of raw materials has been found in respect of physical stock available vis-ŕ-vis the entries made in the RG-23A Part-I. The burning loss would have occurred only after the materials are issued and shown to have been issued from the RG-23A Part-I. - As it is the appellants, who are claiming the benefit of Modvat credit, the onus to show that the same is being claimed in respect of the full quantum of raw materials received by them and utilized in manufacture of the final product is upon them. They are duty bound to show full accountal of the raw material, in respect of which they have availed the credit. Appellants having not explained such shortages, we are of the view that the duty in respect of the same is required to be confirmed along with penalty of identical amount. We hold accordingly. – further we, hold that the charges of clandestine removal are required to be established by production of sufficient and positive evidence leading to inevitable conclusion and the same cannot be upheld on the basis of the entries made in a diary recovered from the third party’s premises and the statement of the authorized representative of that party. We are, accordingly, of the view that the findings of clandestine removal are unsustainable. – Penalty on director not imposable – Regarding retraction of contents by panchas, in view of the fact that the language used in the affidavit of Panchas after a period of four years is only indicative to the fact that the same were at the instance of the appellant and did not explain the circumstances under which they were made to sign the papers. The said two affidavits stand rightly rejected by the lower authority as an afterthought.
|