TMI Blog2008 (9) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2008 - - - Dated:- 24-9-2008 - D.A. Mehta and Bankim N. Mehta, JJ. REPRESENTED BY : Shri Hasit Dilip Dave, for the Appellant. Shri Hriday Buch, for the Respondent. [Order per : D.A. Mehta, J. (Oral)]. The appellant has proposed the following substantial questions of law : - (I) Whether when once dispatched and re-entry of the goods is admitted on record in the facts of the present case then any limitation or delay could be invoked under the provisions of Rule 16 of the CENVAT Credit Rules, 2002 in return of goods to deny such credit? (II) Whether CENVAT Credit can be denied to the appellants on re-entry of goods assuming procedural infractions once the substantive dispatch and re-entry of goods is admitted? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing terms :- (i) Whether the denial of modvat credit of Rs. 59,6,244/- along with interest and penalty of equivalent amount imposed upon M/s. Gujarat Setco Clutch Co. Ltd. has to be upheld as recorded by learned Member (Technical) or the same has to be set aside, as observed by learned Member (Judicial)? (ii) As to whether the penalty of Rs. 5 lakhs imposed under the provisions of Rule 25 of Central Excise Rules has to be set aside, as held by Member (Judicial), but not considered by Member (Technical)? (iii) Whether the confiscation of the seized excess found goods has to be set aside, as held by Member (Judicial) and not considered by Member (Technical)? Vide order dated 27-8-2007 the third party agreed with the Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, duty paid thereon and dispatched to M/s. Telco Limited. However, M/s. Telco Limited rejected the goods as being defective and hence the goods were returned and in terms of Rule 16 of the CENVAT Credit Rules, 2002, the appellant credited the duty originally paid. That the said credit was utilized for clearance of another lot of goods but there was no evidence, either to show that the goods had not been returned by M/s. Telco Limited, or that while clearing the second lot of goods, there was any clandestine production or clandestine removal. That even the diversion of finished goods alleged by the respondent authority, was not established. It was submitted that the statement of the Transporter with whom the appellant Company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignment had been received and, therefore, there is no question of rejecting any consignment. (2) M/s. Telco Limited has not received any credit notes stated to have been issued in their favour by the appellant. (3) That actually the credit notes were not forwarded to M/s. Telco Limited. (4) The statement of the Transporter specifically stated that goods are not being unloaded at a place other than destination recorded in lorry receipts. (5) The appellant Company has no godown at Pune and, therefore, the said goods are taken back from Pune to Kalol in the same truck. (6) That the transporter did not have any storage place for storing the finished goods, which were not accepted by Telco Limited. (7) That the representative of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence on record. It has further been found by CESTAT that though the original explanation of the appellant was that defective goods have been returned by M/s. Telco Limited for rectification, subsequently, it was found that, in fact, M/s. Telco Limited had never rejected and returned the said goods. That whenever M/s. Telco Limited rejected and returned the goods, it had always issued debit notes for rejection of such goods. 10. It is in this context that CESTAT has come to the conclusion that the order of denial of CENVAT Credit along with levy of interest and equivalent penalty is justified. Considering the facts of the case as found by CESTAT, it is apparent that the issue revolves round appreciation of facts. It is not possi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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