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TMI Blog2008 (9) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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? (III) Whether CENVAT Credit can be denied on mere presumptions and assumptions? 2. The learned senior advocate appearing for the appellant submitted, at the outset, that the word 'admitted' in question Nos. 1 and 2 is a typographical error and should be substituted by the word 'established'. Accordingly, the questions are considered. 3. The appellant company manufactures clutch plates, clutch assemblies and components thereof, which are liable to duty of excise. The department visited the factory premises of the appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 (Technical) in relation to the denial of CENVAT Credit of Rs. 59,46,244/- and also confirmed the penalty of equivalent amount. The Bench of the Tribunal thereafter passed an order on 10-9-2007 [2008 (229) E.L.T. 137 (Tri.-Ahmd.)] as per the majority opinion which is under challenge in the present appeal. 5. Learned senior advocate appearing on behalf of the appellant has contended that firstly the onus had wrongly been cast on the appellant. That whether goods were clandestinely removed or not, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 had dealings was misread and mis-appreciated by the respondent authority and the majority members of the CESTAT. Learned counsel, therefore, pleaded that, in fact, the entire matter had proceeded on surmises and conjectures in absence of any cogent evidence in support of the case sought to be made out by the respondent authority. Hence, the issue in question gave rise to a substantial question of law which was required to be considered by this Court. 7. Learned counsel appearing on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany 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 appellant and the Transporter both had categorically recorded in their statements that the goods were not stored at any place. (8) That, if the aforesaid statements are accepted at face value, there is no plausible explanation as to why there is delay of 40 to 140 days in receiving back the finished goods from the date of clearance. (9) That considered in the light of the statement of the Transporter that the goods are transported back in the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 possible to state that this is a case of no evidence, nor is it possible to state that irrelevant factors have been considered by CESTAT and relevant factors ignored. In the circumstances, even if another view different from the one recorded by CESTAT is possible on the evidence on record that by itself would not give rise to any substantial question of law so as to warrant interference. 11. Accordingly, in absence of any question of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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