TMI Blog2009 (3) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... nace oil and there is absolutely no allegation of illicit diversion of the cenvated inputs - reversal of credit on 0.08% - 0.38% shortage on receipt of inputs is not called for - appeal allowed. - E/5502/2004 - 259/2009-EX(PB) - Dated:- 23-3-2009 - S/Shri D.N. Panda, Rakesh Kumar, JJ. REPRESENTED BY : Shri B.L. Narsimhan, Advocate, for the Appellant. Shri Virender Chaudhary, JCDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)] This is an appeal against order-in-appeal No. 610-CE/APPL/ALLD/2004 dt. 17-8-04 passed by Commissioner (Appeals), Allahabad, upholding the order-in-original No. MP (Dem-1/2003) 18/04, dt. 29-3-04 passed by Jt. Commissioner of Central Excise, Allahabad confirming Cenvat credit demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived. It is on this basis that after issue of show cause notice, the Jt. Commissioner vide order-in-original dt. 29-3-04 confirmed Cenvat credit demand of Rs. 18,88,869/- along with interest against the Appellant and besides this, imposed penalty of equal amount. The appeal filed by the Appellant before the Commissioner (Appeals) was rejected vide impugned order-in-appeal dt. 17-8-04. It is against this order that the present appeal has been filed. 2. Heard both the sides. 2.1 Shri B.L. Narsimhan, Advocate, Ld. Counsel for the Appellant pleaded that the inputs - C.P. Coke, Hard Pitch, Furnace Oil and LDO had been received from the manufacturers/suppliers against duty paid invoices and denial of credit is based only on weighment recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inputs received under the invoices and the entire goods received under the consignment have been put to the intended use for manufacture of the finished products by the assessee and the transit loss was found by the Tribunal to be normal loss due to evaporation, Cenvat credit on such short receipt of the inputs cannot be denied. Judgments of the Tribunal in the case of CCE, Aurangabad v. Sipta Coated Steel reported in 2000 (125) E.L.T. 578 were cited wherein the Tribunal observed that it is a common occurrence that when we purchase goods from the shop, if any customer has a weighing scale in his house, when weighing the goods, there can be a margin of error because it depends on calibration of both the weighing machines one at the shop an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds of the receipt of the inputs came to the notice of the Department, the Department took the view that the Appellant would not be eligible for Cenvat credit in respect of quantity short received and it is only on this basis that Cenvat credit demand of Rs. 18,88,869/- has been confirmed against the Appellant along with interest and penalty of equal amount has been imposed. On going through the show cause notice and other case records, we find that there is no allegation that the short receipt was attributable to any mala fide intention like illicit diversion of the Cenvated inputs for uses other than use in the manufacture of the finished goods. The shortage of this magnitude - 0.08% to 0.38%, which is basis of the proceedings against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in the judgments in cases of Ghanda Chemicals Ltd. v. CCE, Mumbai reported in (sic) CCE, Bhopal v. Jaypee Rewa Plant, reported in 2005 (182) E.L.T. 397 and Triveni Glass Ltd. v. CCE, Allahabad reported in 2008 (221) E.L.T. 306, the Tribunal has held that mere 2% difference in weight is not significant as it may be due to difference in weighing scales when there is no evidence of any deliberate and illicit diversion of the inputs and on the basis of such difference, Cenvat credit cannot be denied. The Tribunal in the case of Hindustan Organic Chemicals Ltd. v. CCE, Belapur reported in 2005 (191) E.L.T. 959 has held that it is well settled law that availment of Cenvat credit to the extent of full amount of duty shown on supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X
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