TMI Blog2016 (3) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... d of stock taking. It does not disclose the mode of physical verification. Under such circumstances, the contention of the appellant that the stock taking was done by way of eye estimation, is held tenable. Further find that the said objection have not been dealt with in the order-in-original or in the impugned order in appeal. Thus hold that the allegation of shortage of raw materials, does not stand. Thus, set aside the demand in respect to shortage of raw material along with penalty under Rule 15 read with section 11 AC on the appellant company as well as the penalty on the authorized signatory, Mr. Vipin Bajaj under Rule 26 of the Central Excise Rules. - Decided in favour of assessee - Ex Appeal Nos. 1447 And 1459/2010 - - - Dated:- 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 of the Income Tax Act, as is evident from the balance-sheet for the period 2005-06 and the same appeared to be in violation of the provisions of rule 4 (4) of Cenvat Credit Rules,2004. A SCN dated 20.07.2008 was issued alleging that the cenvat credit of ₹ 10,64,406/- be held in-admissible and demanded under Rule 14 of Cenvat Credit Rules, 2004 with interest. Further, an amount of ₹ 1,08,484/- should not be demanded on shortage of cenvatable inputs found short by 7050 kgs along with interest and further a penalty was proposed on the Company as well as on the Authorized Signatory, Mr. Vipin Bajaj. 4. The appellant contested the show-cause notice stating therein that prior to issuance of show-cause notice, the appellant has w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, except the statement of Mr.Vipin Bajaj. Accordingly, he set aside the penalty on the shortage amounting to ₹ 1,08,484/- but have confirmed the denial of Cenvat credit on the stock found short. Being aggrieved the appellants are before this Tribunal. 6. The appellant had contested the show cause notice stating therein that prior to the issue of show cause notice the appellant have withdrawn the claim of depreciation under the provisions of Income Tax Act by filing revised return on 10/9/07. 7. The ld. Counsel for the appellant draws my attention to the finding of facts recorded at pages 9 and 10 of the impugned order with regard to denial of Cenvat credit on capital goods. He stated that it is admitted fact that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods, the assessee is not entitled to modvat credit. So far as the confirmation of demand in respect to shortage of raw material on the date of inspection is concerned, the ld. Counsel argues that the ld. Commissioner how not dealt with the objection raised by the appellants. The mode of the stock taking - i.e. eye estimation was done on the date of the inspection and have simply confirmed the denial of Cenvat credit, relying on the retracted statement of the authorized signatory, which is fit to be set aside in view of the categorical finding of the ld. Commissioner(Appeals). Para-9 and 10 of the impugned order are reproduced below for ready reference: 9. Coming to the next issue of shortage of inputs, I notice that the appellant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to write a dictated statement because in that case the independent panchas must have refused from signing the aforesaid documents. In my opinion, this is an after-thought to escape from paying duty involved on goods found short. Thus, I hold that the shortage found input cannot be challenged on the grounds of retraction of statement. The duty demanded by the appellant is upheld as the order in that respect is legal and proper and the appellant are required to pay the same with the interest in case of delayed payment. 10. So far as penalty under Rule 15 (1) (2) of the Cenvat Credit Rules, 2004 read with Section 11AC for the alleged shortage is concerned, I notice that there is no evidence except the statement of the appellant No.2 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show the clandestine removal of goods or any other tangible piece of evidence or any evidence of financial flow back of funds etc. to prove the allegations. 8. He further urges that in view of the categorical finding that there is no clandestine removal on the part of the appellant for the shortage in the stock which is also not properly substantiated, no demand should be confirmed and the same is fit to be set aside along with penalty on the appellants. 9. The ld. AR for the Revenue relies on the impugned order. He further states that so far Cenvat credit on capital goods is concerned, the appellant had availed both depreciation and Cenvat credit and it was only pursuant to inspection and objection raised that the appellant file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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