TMI Blog1998 (5) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Chapter sub-heading 8594.00. Commissioner also imposed a penalty of Rs. 10,00,000 on them. 2. Appellants are engaged in the manufacture of optical fibre cable classifiable under Chapter sub-heading 8594.00 of Central Excise Tariff Act, 1985. They also availed credit of specified duty paid on inputs. Appellants imported one of the inputs, namely, fibre reinforced plastic rods (F.R.P. rods) in 21 `skids amounting to 1035 Kms. of FRP. According to the Department appellants had entered the quantity in their RG 23A Part I as 500 Kms. The Department alleges that the said quantity was never taken by the appellants in the stock of inputs nor had they carried it forward in subsequent months. Department also alleged that the appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance. The Commissioner observed that though the appellants had shown to have received 500 Kms of FRP instead of 1035 Kms in Part I of the RG 23A against entry dated 10-9-1991, the same had not been taken in the balance of stock. Since the said quantity of inputs had not been shown in the balance of stock in the statutory documents, namely, RG 23A Part I, there can be no question of issue of such inputs in the manufacture of the final product, out of the said quantity. On examination of requisitions for the month of August, 1991 to November, 1991 produced by the appellants to prove that the quantity received was issued for production, the Commissioner observed that there was nothing in the said requisitions to indicate that the quantities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the quantity was earlier recorded in the month of August, 1991 when the goods were received. He submitted that the Commissioner had arrived at the conclusion that the impugned goods were not received by the appellants in their factory without relying on any evidence to that effect. Ld. Counsel submitted that at the time when the goods were received the relevant documents had not been received and, therefore, they could not be entered in the records. Subsequently when the documents were received the particulars of documents were recorded but not the quantity. It was, therefore, wrong on the part of the Commissioner to hold that the inputs were removed without intimation to the Assistant Commissioner. He also submitted that the finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of clandestine removal and where a charge of clandestine removal is based on conjuctions and surmises without proof thereof on the basis of facts, a charge of clandestine removal cannot be sustained. He relied on the Tribunal decision reported in 1990 (40) E.L.T. (T) and 1992 (59) E.L.T. 584 in support. Further, on receipt of the impugned goods the Bill of Entry was changed and defaced by the Range Supdt. in September, 1991 and monthly RT 12 Returns along with RG 23A Part I and Part II were also submitted during the months of August, September, October and November, 1991. Therefore, there was no question of invoking any extended period making the demand as there was no suppression and mis-declaration. 5. Ld. SDR Shri P.K. Jain, submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the Bill of Entry. The Commissioner had observed that since their was nothing to indicate that the quantities shown to have been issued in such store issue requisitions were those received against the Bill of Entry, the possibility of such issue being from other lots cannot be ruled out. We agree with the ld. Counsel for the appellants that since there is no one-to-one correlation between inputs and the final products for purposes of availing Modvat Credit, rejection of the appellants claim for Modvat credit on the said inputs and the allegation of removal of inputs received under Bill of Entry without intimation under Rule 57F is not correct. In this view of the matter we set aside the impugned order and remand the case to the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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