TMI Blog2015 (11) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... facts on the part of the assessee in respect of non payment of duty on debit note, therefore the department s appeal which is limited to penalties on shortage and debit note does not survive and the same is dismissed. Cenvat Credit - Non receipt of Inputs / raw material - Since the Cenvat Credit was fraudulently availed without receipt of the input the penalties is unavoidably imposable, hence the same is also maintained. I dropped the part of the duty in respect of shortage of material, therefore Shri. Sanjay Agarwal, Director of the assessee/company deserves reduction of penalty, therefore I reduce penalty from ₹ 5 lakhs to ₹ 3 lakhs on Shri. Sanjay Agarwal. In view of my above discussion appeals of the assessees and Shri. Sanjay Agarwal is partly allowed - Decided partly in favour of assessee. - APPEAL NO. E/1552/07 & E/1560-1564/07 - - - Dated:- 12-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Rajesh Ostwal, Advocate For the Respondent : Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) ORDER Per : Ramesh Nair These are four appeals filed by the assessee and one appeal filed by the Revenue against a common Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 35,01,828/- involving Central Excise duty of ₹ 5,60,292/-, 43.044 MTs of raw materials valued at ₹ 5,10,330/- involving Cenvat Credit of ₹ 81,653/- and of 2,400 Kls of furnace oil valued at ₹ 21,600/- involving Cenvat Credit of ₹ 2,456/-(Grand Total= 266.109 MT/KL of various Finished goods/Raw Materials valued at ₹ 40,33,758/- involving Central Excise Duty ₹ 6,45,401/-). The Central Excise Officers also recorded the statements of concerned authorized signatory of the each unit of M/s. Sanvijay Group industries under Section 14 of the Central Excise Act, 1944 who interalia admitted the discrepancies as pointed out by the Department and in confession, the amounts of ₹ 6,45,401/- involved were paid by them. Regarding this shortage, Shri. Sanjay Agrawal, Director Authorised Signatory of the M/s. Sanvijay Group in his statement recorded under Section 14 of Central Excise Act, 1944 stated that this shortage were due to method of accounting of finished goods. The inputs are received and recorded on actual weight basis as well as the finished goods are dispatched also on actual weight basis. However, in the panachanama proceedings dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. E/1561/07 M/s. Sanvijay Steels Industries Pvt. Ltd 7,44,260 1,80,889 10,051 9,35,200 - 7,44,260 4. E/1562/07 M/s. Sanvijay Alloys Pvt. Ltd. 7,15,827 1,49,406 2,112 8,67,345 - 7,15,827 5. E/1564/07 Shri. Sanjay Agarwal - - - - - 5,00,000 Contesting the demand of shortage of inputs and finished goods, demand of Cenvat credit availed without receipt of inputs in the respective unit and penalties thereon. The Revenue also filed appeal No. E/1552/07 for upholding the penalties dropped by the Ld. Commissioner (Appeals) commensurate to the duty demand on shortages and on debit notes. 3. Shri. Rajesh Ostawal, Ld. Counsel for the assessee submits that as regard shortage of various inputs and finished goods the quantum is negligible. It is his su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R.) appearing on behalf of the Revenue submits that as regard the parties appeal, he reiterates the findings of the Ld. Commissioner inasmuch as demand on shortage of stock debit note as well as wrongly availed Cenvat credit without receipt of inputs. As regard penalties, he submits that shortage were found in respect of finished goods and input during stock taking and the same was admitted by the director of the assesee/company therefore the same is maintainable. As regard wrong availment of Cenvat credit without receipt of inputs in respective unit, he further submits that appellant have categorically admitted that inputs were first received in different factory and as regard shifting of goods to the correct and respective unit the assessee could not provide any evidence. It is his submission that from the investigation, it is revealed that the invoices on which Cenvat Credit was taken bearing stamp of different unit regarding the delivery of the goods. Since, this is clear evidence was found then assessee had no choice except to take a false stand that inputs received in different factory and subsequently shifted to the correct factory. But, since, this is a fact as no evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual weight, they cleared the goods on actual weight. In any case, the shortage being within the range of +/- 5% , should be ignored. We agree with the above contention of the Ld. Advocate, except for small % of shortage in the final product, which in any case stands explained by the appellants, we find that there is no other evidence on record to show that the appellants had cleared the said goods without payment of duty from their factory. Inasmuch as the shortage is within the range of +/- 5%, we find no justifiable reason to hold against the appellants on this count and to confirm the demand of duty. From the above clear judgment of this Tribunal in the assessees own case it was held that the shortage in the range of +/- 5 % should be ignored and it is not justified to confirmed demand on this count. I find that aforesaid judgment is squarely applicable in the present case. Accordingly, following the ratio of the above judgment, I drop the demand in respect of shortage found in the physical stock and consequently penalties commensurate to the duty of such shortage also not sustainable. As regard the duty on debit note, the assesse admittedly paid the duty and not cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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