TMI Blog2007 (5) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998 onwards in respect of Modvat credit availed on capital goods. The assessee was asked to produce documents on the strength of which credit was availed during August-Sept. 1998 and since such documents were not produced, show cause notice dated 29-7-2003 was issued to the assessee proposing to disallow the entire Modvat credit of Rs. 34,18,31,100/- availed during the above mentioned two months. Another show cause notice dated 29-9-2003 was also issued, proposing to recover Modvat credit of Rs. 88,98,786/- on the ground inter alia that duty paying documents were not produced at the time of special audit and that excess credit was taken vide RG 23C Part II dated 21-10-1998, and that credit of Rs. 28,929/- was taken twice against one invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 1998-99. I observe that the noticee has adduced evidence in the form of letters of the Range Superintendent, Pen Range (i) dated 8-12-1998 wherein certain objections in respect of audit conducted for the months from June, 1998 to August 1998 had been detailed; (ii) letter dated 8-4-99 evidencing that CERA had conducted audit from January 1996 to November, 1998; (iii) letter dated 9-5-2000 evidencing that CERA had conducted audit from January 1999 to January 2000; (iv) Internal Audit Report No. 10/99 in respect of internal audit conducted by the department in December 1998; (v) letter dated 26-2-1999 of the Superintendent STF, Mumbai VII from which it is seen that on verification/scrutiny of the records and on further inquiry certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03. From the extensive evidence produce by the noticee, it is explicitly clear that the duty paying documents on the strength of which credit was availed were available at the material time in the year 1998-99 and immediately afterwards. Lastly, they produced copy of acknowledgement by the Range office in respect of submission of monthly RT 12 returns for August Sept 1998 and October 1998 along with the duty paying documents for necessary scrutiny/assessment/defacement. From the evidence as discussed above, I am convinced that the duty paying documents were very much in the possession of the noticee at the material time when the credit was availed in 1998-99 further made available to the Range Office, audit parties, the Special Task For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were submitted or produced before the officers for verification, hence the ratio of these judgments does not appear to be applicable in the instant case. Secondly, the assessee under Rule 173G(9) of Central Excise Rules, 1944, is required to preserve the records for five financial years immediately after the financial year to which the records pertain. Further, as per Rule 173G(6)(a)(i)(ii)(iii) of Central Excise Rules, 1944 clearly stipulates that every assessee shall on demand make available to the Central Excise officer or the audit party deputed by the Commissioner or Controller and Auditor general India the records maintained and prepared by him . 4. Ground (a) (b) cannot be the grounds available to the Revenue for the reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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