TMI Blog2011 (10) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was paid by the assessee prior to issue of show-cause notice and the same was appropriated by the adjudicating authority. - Coupled with this is the fact that the said payment was not under protest and that this payment was made close on the heels of admission of lapse under Section 14 of Central Excise Act. - Matter remanded to commissioner (appeals) for fresh decision. - E/1982 & 1983 of 2010 - - - Dated:- 14-10-2011 - Shri P. G. Chacko, J. Appearance Ms. Sabrina Cano, DR for the appellant Mr. R. Dakshinamurthy, Advocate for the respondent (1) above and none for the respondent (2) above. Shri P. G. Chacko, J. These appeals filed by the department are directed against the appellate Commissioner's order settin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved parties, the above Order-in-Original stands set aside. The appellate authority found that the lower authority had ignored the documentary evidence submitted by M/s G.S. Alloy Castings Ltd. in support of their plea of receipt of raw material in the factory under cover of the relevant invoices. The appellate authority on this basis held that the finding to the contra recorded by the lower authority is without any legal basis. The appellate authority further relied on an affidavit filed by one Shri D. Srinivasa Rao, Authorised Signatory of Srinivasa Transport, wherein the deponent stated that they had supplied certain lorries (mentioned in the affidavit) to M/s Sree Tirumala Steel Rolling Mill Pvt. Ltd. on the dates mentioned in the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of penalty was imposed on the respondent under Rule 15 (2) of the CENVAT Credit Rules, 2004. Separate penalties were imposed on two other parties including Shri Ashok Garg of M/s Usha Enterprises (respondent in appeal No. E/1983/2010). The decision of the Assistant Commissioner (adjudicating authority) was set aside by the Commissioner (Appeals) in the manner already discussed. 3. The Revenue is aggrieved, mainly, on the ground that the Commissioner (Appeals) is not correct in having found that there was no corroborative evidence in support of the demand. The appellant has also relied on case law on preponderance of probability to justify the findings recorded by the original authority. The appellant has particularly referred to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion was not before that authority. Even the assessee (GS Alloy Castings Pvt. Ltd.) did not rely on any such affidavit in their reply to the show-cause notice. It is surprising to note that the appellate authority chose to permit the assessee to bring on record the said affidavit. There is nothing on record to indicate that the new evidence was allowed to be adduced for valid reason. A crucial fact was either overlooked or ignored by the appellate authority and the same is that an amount equal to the credit in question was paid by the assessee prior to issue of show-cause notice and the same was appropriated by the adjudicating authority. Coupled with this is the fact that the said payment was not under protest and that this payment was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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