TMI Blog2015 (2) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods has not taken place at all, then, coupled with other materials, the Tribunal rightly arrived at the conclusion that there has been a wrongful availment of Cenvat credit. In the circumstances, we do not think that the Tribunal’s order can be termed as perverse. - Decided against the appellant. - Central Excise Appeal No. 27 of 2014 - - - Dated:- 24-2-2015 - S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. Shri Vikram Nankani, Senior Counsel a/w. Sushant Murthy and Nandagopal i/b. M/s. Economic Laws Practice, Advocate, for the Appellant. Shri Pradeep S. Jetly, Advocate, for the Respondent. ORDER P.C. : This appeal by the assessee challenges the order passed by the Customs, Excise and Services Tax Appellate Tribunal dated 18th April, 2013. 2. The learned senior counsel appearing on behalf of the appellant submits that this appeal raises substantial questions of law. The Tribunal was in error in confirming the Order-in-Original. There were several discrepancies and contradictions which were pointed out in the Order-in-Original. As a fact finding authority, the Tribunal was obliged to apply its mind to all the aspects of the controversy and render its fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on record in relation to both, then, the Tribunal s findings and observations which concur with the Order-in-Original do not raise any substantial questions of law. The appeal deserves to be dismissed. 5. With the assistance of Mr. Nankani and Mr. Jetly, we have perused the appeal paper book including some of the documents to which are our attention was invited. 6. At page No. 71 of the paper book is a copy of the show cause notice which has been issued to the assessee. The assessee is stated to be engaged in manufacture of aluminium alloy ingots classifiable under Section 76 of the Schedule to the Central Excise Tariff Act, 1985. Its factory is at Silvassa. It is also availing the benefit of Cenvat credit under the provisions of the Cenvat Credit Rules and applicable at the relevant time. 7. There was specific intelligence received that the assessee availed of Cenvat credit on inputs not physically received/used in the factory and that is how it evaded the Central Excise duty. There was a visit paid by the officers of the Intelligence Unit of the Central Excise and Customs, Vapi. They verified the stocks. They held preventive checks and in the presence of two indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been summarized in the show cause notice and details in the annexures are relatable to the shortages, the discrepancies and the errors. Thus, the materials which were relied upon by the Revenue to support the charge of wrongful availment of Cenvat credit includes the statements of persons associated and connected with the assessee themselves. 9. We are not in agreement with Mr. Nankani that the Tribunal, while affirming a finding of fact as recorded in the Order-in-Original, has omitted from consideration anything which is relevant or germane to this issue. Further, its findings cannot be termed as vitiated by non-application of mind. They are not palpably, erroneous, as contended, as well. In that regard, there is merit in the contention of Mr. Jetly, that this appeal is nothing but an attempt at re-appreciation and reappraisal of the factual findings. 10. We find that the Tribunal was fully aware of the demand raised in the show cause notice and particularly of wrongly availment of Cenvat credit. It has in relation to the first charge or allegation exclusively referred to the investigation carried out, the allegations in the show cause notice, the relevant period and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norms could be the SION. They would establish the importation of the raw materials and the co-relation with the obligation of the importers for export. These norms were devised after widespread consultation. In the circumstances, apart from the statements recorded, the contents of the panchanama and the details as referred to in various annexures to the show cause notice additionally SION norms have been taken into account and referred beyond that we do not find anything and which could be said to be objectionable. 12. There are elaborate findings with regard to clearance of the aluminium alloy ingots (final product), without payment of duty. The Tribunal has found once again that parties such as M/s. Saini Road Carriers have confirmed that some of the materials which are stated to have been transported as such were not billed. We have already found and with reference to the allegations in the show cause notice that the road carrier, the records, the documents in their custody and possession have been referred to and independent scrutiny of the contents of the statements of persons connected with the assessee and its business. It is a cumulative reliance and on these materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essity of reworking the credit and the extent to which it could have been disallowed. 17. In that regard, we have perused the written submissions, a copy of which is page 454 of the paper book. The set of written submissions and the details which are stated to be forming part of the record go to show that 579 Metric Tons of aluminium ingots were received as claimed of the 663 Metric Tons alleged to have not been received. Therefore, it is an approximation in relation to 84 Metric Ton and that the transporters have deposed as having not been transported to the appellant s factory. 18. In relation to that we do not find any reason for either direction being issued to rework the quantum of wrongful credit or admit this appeal on that count as urged. There were three inputs which the appellant-assessee failed to receive. These were aluminium ingots, aluminium scrap and copper scrap (DREAL) which go in the manufacturing of their final product. We do not think that we can undertake an exercise and at this further appellate stage to find out as to how many metric tons of each of these inputs were transported and received or were stated to be not transported and received. If the tota ..... X X X X Extracts X X X X X X X X Extracts X X X X
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