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TMI Blog2016 (3) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials of Unit - I were transferred to Unit - II and Cenvat credit thereon was taken without the input being utilised in manufacture of dutiable goods, for which, Revenue has suffered loss. However considering the defence plea and evidence the demand proposed by the said so cause notice was reduced to Rs. 7,60,135/-. 2.1 The second show-cause notice dated 23.06.11was issued making allegation that the Unit - II had cleared certain raw materials to Unit - I, availingCenvat credit and such credit was wrongly utilisedwithout suchinput being used in manufacture by that Unit. That made the exchequer to suffer revenue loss. Accordingly, thatshow-cause notice gave rise to the adjudication proceeding resulting in disallowance of Cenvat credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 11 (8) of his reply to show-cause notice [copy available at pages 93-126 of the appeal folder] made specific plea for stock reconciliation. But injusticewas caused to the appellant due to inaction ofthe authority.If that Authority re-examines the pleadings of the appellants detailed in reply to the show-cause notice and most particularly para 31.1 thereof, the controversy can be resolved. The demand was superfluously raised in the adjudication disregarding the defence plea and meritof the case on record. The appellant explained that under no circumstance demand shall exceedRs.1,61,490/- because there was no clandestine removal of either finished goods or raw material at all and no evidence was adduced by Revenue against appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials were transferred from one Unit to another unauthorisedly, and thereafter that vanished. Therefore proper demand was raised by Commissioner (Appeals). 5.1 Revenue further says that so far as the second aspect of demand of Rs. 1,61,490/-arising out of SCN dated 23.06.2011 is concerned, learned appellate authority thoroughly examined every allegation and noticed that the raw material were transferred from one unit to anotherclandestinely removing the same for which appellant was liable to adjudication consequences. 5.2 It was explained by Revenue that the plea of the appellant that stock taking was done in dark isfalsewhen there was threadbare examination of the evidence made. Similarly, when the notebook seized in the course of search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority shall examine whether inventory data maintained in the computer is reliable and if so, that shall be reconciled with the physical inventory of stockfigure. The discrepancy, if any, arising out of such reconciliationshall be explained by the appellant. On hearing the appellant on that count, the authority shall pass appropriate order. 7.3 Thirdly,so far as the oral evidence and documentary evidences are concerned, those are certainly the evidence properly gathered in the course of search and can be utilised in the adjudication subject to opportunity of rebuttal.The notebook, which was discovered in the course of search if found to be relevant, the authority has power to make use of the contents thereof andconsidering defence plea s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty shall independently apply his mind without being guided by the appellate finding of lower appellate authoritywho made partial remand of the matter. 10. So far as the second show-cause notice is concerned, if that is different from the first show-cause notice, the authority shall properly deal with that independently or in combination with the first show-cause notice. He has to clearly bring out the status of each show-cause notice and allegation made therein dealt thoroughly in his reasoned and speaking order. 11. In the light of the above, the matter is remanded to Adjudicating Authority with the aforesaid observations and directions to pass a reasoned and speaking order granting reasonable opportunity of hearing to the appellant in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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