TMI Blog2014 (2) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority that the loss of the inputs being marginal, the Cenvat credit should not be denied to an assessee. Respectfully following the same; I hold that the Revenue’s appeal to the extent it challenges the appeal of the first appellate authority on this point of denial of Cenvat credit for short receipt of the inputs is liable to be rejected. In the Order-in-Original, the adjudicating authority has admitted that as far as the role of buyers is concerned, there is little evidence from the buyers’ end to corroborate that the goods despatched were not under the proper duty paying documents and also noted that Revenue would not bring corroborative evidences to substantiate their case. If these are the findings of the adjudicating authority as to there being no corroborative evidences, then, the Revenue has failed to bring home charges against the respondent, as has been correctly held by the first appellate authority as per the findings reproduced hereinabove. I find that the first appellate authority has correctly come to the conclusion that there is no evidence of clandestine removal of the goods by the respondent herein. In view of this, the Revenue’s appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the impugned order to the extent it confirms the demand against the respondent except for an amount of Rs. 38,250/-, He also set aside the penalties imposed on the main assessee and other individuals. 4. The ld. Additional Commissioner (AR) appearing on behalf of the Revenue would submit that the order of the Commissioner (Appeals) is contrary to the law and hence is improper, invalid and bad in law. He would take me through all the records and also the order-in-original and the documents annexed along with the show cause notice. It is his submission that Commissioner (Appeals) erred in holding that there is no such dependable evidence on record to establish clandestine removal. It is his submission that Shri Subhash Solanki had in his statement dated 17-3-2009 confirmed that they had not prepared LRs for clearance to M/s. United Phosphorous Ltd. and M/s. Bilag Industries Pvt. Ltd. had cleared the same without payment of duty. It is his submission that these facts have been confirmed by other two individuals in their statements which have the force and is enough to prove/establish that assessee have cleared the goods to both the companies illicitly. It is his submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission that even if there are any case decided by the Tribunal, the said case may be in the specific facts and circumstances of that case. As such the said case laws would have a general application especially in the absence of any legal provision to permit entitlement of Cenvat credit on the short received quantity of inputs. It is his submission that if the goods received are less than invoiced quantity, proportionate credit should not be availed by the assessee. It is his submission that the first appellate authority has erred in setting aside the equivalent penalty imposed on the assessee as it stands established beyond reasonable doubt that the unit was engaged in illicit production and clearance of the finished goods. It is also his submission that personal penalties imposed on Shri Subhash Solanki, Manager Accounts and Shri J.S. Patel, factory manager is also incorrect as those persons factually admitted their role to the clandestine removal of the goods. He prayed for setting aside the impugned order and restoring the Order-in-Original. 5. Ld. counsel appearing on behalf of the respondent would submit that company had also filed an appeal against the very same order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at internal page 69 of the order-in-original. It is his further submission that when Shri Subhash Solanki gave an answer of non-removal of the goods without payment of duty was countered by the adjudicating authority by putting a question as an examination in chief, it was also replied that Departmental Officers had detained him between 11:30 A.M. to 10:30 P.M. and was shown different statements on the computer screen and a single statement was signed with different variations. It is his submission that once in the cross-examination and re-examination, if a witness clearly states non-removal of any goods from factory premises without payment of duty, nothing survives in the case. It is also his submission that the cross-examination as recorded in Order-in-Original would indicate that Shri Subhash Solanki has never stated they had removed the goods clandestinely. It is his submission that besides these evidences, Revenue has hot adduced any other corroborative evidence to hold that the respondent has cleared the goods clandestinely. 6. I have considered the submissions made at length by both sides and perused the records. 7. On perusal of the records, I Find that the Revenue s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of overwriting made by the appellant as the records maintained by them were objected to by the auditors of the ISO, it is a fact that once the unit had been registered as 9001-2000, they had to follow a specified procedure required under ISO norms. In this regard, I find that this is not a dependable record to establish clandestine removal of vegetable products manufactured by the appellants unless the same is supported by other evidence, such as raw material consumed, goods actually manufactured and packed, etc. There is no such evidence on record. There is also no co-relation between the consumption of raw materials, actual finished goods manufactured, and cleared. (A) Further statements of their following customers were recorded. (i) The statement dated 26-12-2008 of Shri Anil Mohanlal Desai, Manager (Commercial) of M/s. United Phosphorous Ltd., Vapi. (ii) The statement dated 26-12-2008 of Shri Manish Bhagwanbhai Lakhani, authorised signatory of M/s. Jay Enterprise, Ahmedabad. (iii) The statement dated 5-1-2009 of Shri George Peter K., Assistant Manager (Excise) of M/s. Bilag Industries Pvt. Ltd., Vapi. (iv) The statement dated 5-1-2009 of Shri Pankafbh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Original, the adjudicating authority has admitted that as far as the role of buyers is concerned, there is little evidence from the buyers end to corroborate that the goods despatched were not under the proper duty paying documents and also noted that Revenue would not bring corroborative evidences to substantiate their case. If these are the findings of the adjudicating authority as to there being no corroborative evidences, then, the Revenue has failed to bring home charges against the respondent, as has been correctly held by the first appellate authority as per the findings reproduced hereinabove. I find that the first appellate authority has correctly come to the conclusion that there is no evidence of clandestine removal of the goods by the respondent herein. In view of this, the Revenue s appeal against the main assessee fails. Since the Revenue s appeal against the main assessee fails, the consequent appeals of setting aside of the penalties on other two individuals also fail. 11. In view of the foregoing, I am of the view that Revenue s appeals are to be rejected and I do so. 12. Revenue s appeals are rejected. (Pronounced in the Court on 25-7-2013) - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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