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2016 (2) TMI 211 - CESTAT MUMBAI

2016 (2) TMI 211 - CESTAT MUMBAI - 2015 (326) E.L.T. 737 (Tri. - Mumbai) - Rectification of mistake - difference in opinion between Member (Judicial) and Member (Technical) the Hon’ble President nominated the Third Member (Technical) to resolve the difference of opinion - Whether the evidence produced by the Revenue establishes wrongful availment of Cenvat credit and consequently demand of duty and imposition of penalties is sustainable as held by Member (Technical)? - Held that:- In the present .....

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e ld. counsel. The Member (Judicial) held that the evidence produced by Revenue is not sufficient whereas Member (Technical) held that the evidence produced is sustainable. One Member may look at the evidence from a certain perspective whereas the other Member may look out the same evidence from different perspective. But the fact is that both the Members have given a definite conclusion based on the evidence on record. There is no finding in the order that a certain evidence was accepted by one .....

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l were to be accepted in cases of evasion, it would lead to a conclusion wherein hundreds of pieces of evidence, the opinion of each Member would need to be expressed on each piece of evidence in the difference of opinion. This is neither practical nor the intention of the law. ROM application is dismissed. - E/1625/2006-Mum - Misc. Order No. M/4623/2015-WZB/EB - Dated:- 11-9-2015 - Shri P.S. Pruthi, Member (T) and S.S. Garg, Member (J) Shri Vishal Agarwal with Nikhil Rungta, Advocates, for the .....

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ri P.K. Jain, Member (Technical) to resolve the difference of opinion. This application is filed seeking rectification of the mistake that has crept in the framing of the questions referred to the Hon ble Third Member which is reproduced below :- The evidence produced by the Revenue is not sufficient to establish the fraudulent availment of credit by the appellant and consequently the demand of duty should be set aside and penalties are not imposable as held by Member (Judicial) OR Whether the e .....

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thers is reproduced below : a. In respect of credit pertaining to Aluminium Profiles and section purchased from M/s. Sangli Aluminium and Extrusions P. Ltd. (SAEPL for short) - Statement of Mr. Mangesh Vishnu Mahaname, Proprietor of Vaishali Roadways; - Statement of Dinesh Ramnarayan Yadav, Accountant of the applicant. - Statement of C.S. Rawat, Factory in-charge of the applicant. - Documents seized from the premises of SAEPL. - Statement of Mr. Ravindra Chedda, Director of SAEPL; - Documents fu .....

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esh Patel, Managing Director of SAPL; - Statement of Mr. Guru R. Guthyal, Manager of M/s. B.S. Patel Roadways; - Statement of Mr. Gururangappa, Managing Director of M/s. B.S. Patel Roadways; - Statement of Dinesh Ramnarayan Yadav, Accountant of the applicant; - Statement of C.S. Rawat, Factory in-charge of the applicant; - Raw material Receipt Register, Transport Vouchers and RG 23A-Part-I - Statement of Mr. Asit K. Mandal, Authorised signatory of SAPL 3.2 In the application such list of ev .....

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to necessarily agree entirely with either Member (Judicial) or Member (Technical). It is his apprehension that it may so happen that in respect of finding pertaining to one evidence the Third Member may agree with Member (Judicial) whereas in respect of other finding pertaining to another evidence he may agree with Member (Technical). According to him separate questions ought to have been framed for each credit availed. 3.4 On the issue of maintainability he relied on Colourtex v. UOI - 200 .....

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ppearing for the Revenue opposes the application and states that for rectification of mistake the mistake must be obvious. In the present case, the question framed for reference is clearly set out for decision, i.e., whether evidence produced by Revenue is sufficient to establish the fraudulent availment of credit. 5. Having considered the rival contentions, we find that the citations relied upon by the ld. counsel are on a different footing. The facts in the case of Suzlon Infrastructure L .....

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efore, it was directed that the appeal be heard on all points raised in accordance with law, if they are relevant for determining the proviso. In the case of Jagat Texturising - 2010 (20) S.T.R. 564 (Guj.) = 2010 (255) E.L.T. 353 (Guj.), it was held by the Hon ble High Court that the two Members who recorded dissenting opinions referred the entire appeal as follows :- Difference of Opinion Whether the appeals of M/s. Jagat Texturising and one other in Appeal Nos. E/941 and E/942/05 are to be all .....

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her the appeals are required to be allowed as held by Vice-President? The Hon ble High Court held that the two Members must state the points on which they differ. 5.1 We find the situation in the present case is different. In the present case, the question referred to the Third Member above, is very clear. What has been referred for opinion of the Third Member is whether the evidence produced is sufficient to establish fraudulent availment of credit. It is not brought out by the counsel tha .....

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