TMI Blog2015 (11) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... s, goods were cleared from the factory without payment of duty. Even if it is accepted that part of the returned goods were defective and cleared as scrap, same was cleared on payment of duty. However, the loss booked in the books of account is on account of said defective parts, credit is not admissible as already held above. - Decided partly in favour of assessee. - Appeal No. E/515/11-MUM - - - Dated:- 26-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri Manoj Kasle, Advocate For the Respondent : Shri N. N. Prabhudesai, Asst. Commissioner (A.R.) ORDER Per : Ramesh Nair This appeal is directed against Order-in-Appeal No. PKS/475/BEL/2010 dtd. 20/12/2010 passed by the Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sr. No. 1 and 2 were declared as obsolete in the balance sheet of the appellant for the year 2004-05. The returned goods covered under the invoices mentioned at Sr. No. 3 to 5 also appear to be obsolete as the goods were not cleared subsequently. It was alleged that appellants products are tailor made to suit for particular industry and the same cannot be used by others without making major changes and hence appellants cleared parts/components were used by them in their products and cleared on payment of duty subsequently is not correct as it is not substantiated with documentary evidence. Since, the rejected and returned goods were not cleared on payment of duty subsequently, the Cenvat credit availed on the said goods totally amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit of ₹ 1,44,754/- admittedly these were in respect of returned goods and credit was taken in terms of Rule 16 of Central Excise Rules, 2002. The credit was denied on the ground that these goods after receipt become loss and therefore credit is not admissible. It is his submission that after receipt of these goods the appellant dismantle the machines and some of the parts were used in manufacture of the final product and some of the parts got defected and on account of that defective part loss was booked in the balance sheet for the year 2004-05. He submits that there is no dispute for duty paid goods returned to the factory and it was not cleared from the factory. The material was used for further production in their routine produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome defective goods was booked in the balance sheet. Adjudicating authority as well as the Commissioner (Appeals) has made serious error that in one hand demand of ₹ 1,44,754/- was confirmed on the invoices of the returned goods and at the same time Cenvat credit in respect of said loss of ₹ 4,35,630/- and ₹ 3,32,000/- booked in year 2003-04 and 2004-05 was demanded. Thus lower authority has demanded duty of the same material twice i.e. on direct invoices and other loss booked in the balance sheet, therefore, there is clear duplication of demand. 4. On the other hand, Shri N. N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. I have carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adduce a single evidence by which it can be established that out of the goods covered under five invoices, goods were cleared from the factory without payment of duty. Even if it is accepted that part of the returned goods were defective and cleared as scrap, same was cleared on payment of duty. However, the loss booked in the books of account is on account of said defective parts, credit is not admissible as already held above. As regard the five invoices, there are no evidence regarding clandestine removal or otherwise. In terms of Rule16, there no one to one co-relation has been provided or any other procedure required. Rule 16 only provides that on receipt of duty paid goods, receipt should be booked thereafter if the said goods is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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