TMI Blog2010 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... Y : Ms. Naynaben K. Gadhvi, for the Appellant. None, for the Respondent. [Order per : Harsha Devani, J. (Oral)]. - Leave to substitute the proposed questions. 2.In this appeal under Section 35(G) of the Central Excise Act, 1944 (the Act), the appellant-revenue has challenged the order dated 20-8-2008 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) by proposing the following two questions. 1. Whether the Income Tax Appellate Tribunal committed error in not considering the aspect that income tax return in the form of 3-CD Tax Reports are in nature of statutory admission of assessee about short receipt of inputs and binding to assessee? 2. Whether the Income Tax Appellate Tribunal committed e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 allowed, the appeal of the revenue and held that the respondent-assessee had wrongly availed CENVAT credit which was not admissible to it and accordingly confirmed the demand of CENVAT credit along with the interest and also imposed penalty under Rules 57-I and 57AH of the Rules and Rule 12 of the CENVAT Credit Rules, 2001/2002 read with Section 11A(1) of the Act. Against the order of the Commissioner (Appeals), the assessee preferred appeal before the Tribunal, which came to be allowed vide the impugned order [2009 (238) E.L.T. 497 (Tri. - Ahmd.)]. 4. Assailing the impugned order of the Tribunal, Ms. Naynaben K. Gadhvi, learned Standing Counsel for the appellant submitted that the respondent-assessee had submitted 3-CD Tax Report pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether there was short receipt of raw material or the shortage was on account of manufacturing/process loss. That the department s case was based purely on the 3-CD Tax Audit Report and that there was no corroborative evidence to establish that the shortage was on account of short receipt of raw material. It was further observed that various Tribunals have time and again held that if raw material is received, the manufacturer or producer of final product is entitled to take credit of the duty paid on any inputs received in the factory. The adjudicating authority has further noted that the blow molding process of the manufacture of plastic granules requires the granules to be heated for melting, which results in certain process losses, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, there was no other corroborative evidence to establish that the shortage was on account of short receipt of raw material. The assessee had availed of credit of the duty as reflected in the invoices for the inputs. There was no allegation that the credit availed by it was in excess of the duty paid by the supplier of the inputs. The Tribunal further found that there was some process loss during blow moulding process and that the loss claimed by the assessee was not on the higher side. The Tribunal observed that the Commissioner (Appeals) had proceeded on assumptions and presumptions and not on the basis of any evidence showing less receipt of raw material in the assessee s factory and was of the view that the benefit of yield loss was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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