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TMI Blog2013 (9) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... to adjudicating authority by observing as under: 2. Learned counsel for the appellants submits that there is a duty demand of Rs.43,70,732/- and an equal amount of penalty. In addition, a penalty of Rs.10 lakhs has been imposed on Shri Prakash Bhansali, Managing Director of the company and further penalty of Rs. 5 lakhs has been imposed on the authorized signatory under Rule 173Q(2)(b)(i) of the Central Excise Rules, 1944. He submits that the appellant has paid a sum of Rs.5,26,703/ - against the confirmation of the aforesaid demand before the impugned order was passed. He contends that the Commissioner has virtually reproduced the entire order of his predecessor despite the order of the Tribunal dated 9.10.2003 remanding the matter to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein is a manufacturer of printed plastic films/rolls for packing of liquid milk, they availed MODVAT Credit on duty paid on inputs viz. LDPE, LLDPE. The printed plastic films/rolls are tailor-made as per the requirement of the dairies, who placed purchase orders and said finished goods bear the name of the dairy. Based upon the information, officers of Central Excise & Customs searched the appellants factory and verified the physical stock of raw material as well as finished products, noticing shortage of raw materials. After the investigation, statements were recorded. Subsequently, Show Cause Notice was issued on an allegation that the appellant had removed the raw materials on which MODVAT Credit was taken and also has clandestinely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his submission that the total quantity cleared on 35 invoices during the period in question i.e. 1995-96 and 1996-97 were cleared to mostly government owned dairies. He would draw our attention to the certificates issued by such dairies indicating the receipt of quantity of finished goods i.e. printed plastic films/rolls printed plastic films/rolls and submit that the quantity received by the government dairies tallies with the quantity shown as cleared by the appellant in total from their factory premises. It is his submission that the goods were initially cleared under delivery challan and subsequently invoices were prepared for the payment of duty on the said goods. As regards the evidences relied upon by the adjudicating authority, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant as they are unable to give proper explanation for such shortage. To that extent, the adjudicating authority's findings on the point are correct, legal and does not suffer from any infirmity. However, we find strong force in the contentions raised by the ld. Counsel that if the inputs on which MODVAT Credit is availed are found short, the provisions as per the provisions of CENVAT Credit Rules/Central Excise Rules, 1944 during the relevant period was that the amount of duty of credit attributable to such inputs found short, needs only to be reversed and there cannot be any excess demand. This is a settled issue. Accordingly, upholding the confirmation of demand of duty on the inputs on which the MODVAT Credit was availed and found short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire period. In order to appreciate the correct factual matrix, we reproduce one of the certificate issued by Baroda District Co-operative Milk Producers Union Ltd. 11. It can be seen from the above reproduced certificate issued by the appellant's purchaser, they have clearly indicated the exact quantity of the finished goods received by them in the relevant period. Appellants claim is that this can be ascertained from the entire records i.e. the annexures to the Show Cause Notice. We find that the adjudicating authority has discarded these evidences received from the various government owned dairies, by stating that they have only furthered the Revenue's case. In our view, this summary rejection of such crucial evidence seems to be incor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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