TMI Blog2016 (5) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... a, AR ORDER Per Ashok Jindal The appellants are in appeals against the impugned orders demanding duty alongwith interest and imposing penalty on all the appellants. 2. The facts of the case are similar in all the appeals, therefore, the same are disposed of by a common order. 3. The appellants are manufacturers of motor vehicles/tractor parts and accessories falling under sub heading 8708.00,8607.00 and 9401.00 of the Central Excise Tariff Act, 1985. They are original equipment suppliers of various tractors and motor vehicles. In the process certain raw material was purchased which is used in the manufacturing of goods supplied to OE manufacturers. Out of duty payable on finished goods, modvat credit is claimed at the duty paid on the purchase of raw materials. A intelligence was gathered that some manufacturers of OE parts were fraudulently availing modvat credit on GP sheet which was neither an input nor it was used for the manufacture of OE parts. During the preliminary investigation, it was found that modus operandi of the appellant was that though OE manufacturers such as Punjab Tractors Ltd., HMT Ltd., Railway Coach Factory and Maruti Udyog Ltd, required the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant was procuring the raw material from the registered dealer and was availing the benefit of the Cenvat credit of duty paid on the same. The said inputs were being utilised by him in the manufacture of final product and the credit availed was being used for discharge of duty liability on their final product. 4. It is seen that the Revenue made certain investigations from the appellant's customers as also from the dealers. As per the enquiries made from the manufacturers-customers, it was deposed by them that they were getting various tractor parts manufactured from the appellant for further use in the manufacture of the motor vehicles at their end; that for this purpose drawing and specifications of the raw materials are supplied by them to various vendors; that the main raw material for manufacture of the motor vehicle parts is CR/HR sheets; that the tractor part supplied by the vendor are usually manufactured out of CR/HR sheets. They also further deposed that they had not received any component/parts manufactured out of GP sheets. 5. The appellants factory was visited by the officer on 1-11-1999 and in the presence of Shri Subhash Sikka, Managing partner of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t they have disposed of the said GP sheets in the market and have substituted the same with HR/CR sheets is not proved because the allegation is based upon assumption and presumption and no evidence stands given by the Revenue. There is no statement of any buyer of the GP sheets recorded by the Revenue so as to corroborate the allegations. He also observed that there is hardly any difference in the HR/CR sheets and the GP sheets. He also observed that the appellants have shown him the samples of silencers which are made of GP sheets and as such the plea of the department that the GP sheets are not being used by the appellant is not correct. The appellate authority also held the demand to be barred by limitation having been raised on 4-4-2000, for the period Jan., 1995 to December, 1998. He observed that the entire credit was being availed by the appellant by reflecting the same in the statutory returns; that all the invoices were being produced before the Range officer, who was regularly defacing the same and; that RT-12 returns were being regularly filed by the appellant; that the said RT-12 returns were being finally assessed. As such there was no question of suppression of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a presumption in his favour. Accordingly, he has observed that burden of proof in a case of clandestine activities is that while onus of proving clandestine clearance lies on the department, the onus of adducing the evidence to establish a case keeps on shifting throughout the process of appreciation of the evidence in a case. Accordingly, he has observed that if the department is able to adduce sufficient evidence, which gives rise to a reasonable inference of clandestine clearance against the party, then the onus to rebut the evidence shifts on the party. However, the above principle may be true but I really fail to understand that which initial evidence the Revenue has produced to establish that the appellant has cleared the GP sheets in the market. There is virtually no evidence produced by the Revenue inasmuch as no buyer of the GP sheets stands identified nor is there any documentary evidence to establish that the procured GP sheets were cleared by the appellant in the market. Further, the Revenue has also miserably failed to show as to from where the appellants have procured the HR/CR sheets. Admittedly, without the use of the raw materials, may It be GP sheets or HR/CR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t manufacturer have nowhere stated that it is impossible to manufacture OE parts out of GP sheets. In fact the opinion tendered by SAIL, is to the clear effect that normally GP sheets are not used. The Revenue establishing a fact that in the normal course GP sheets are not used for manufacture of OE parts, cannot lead to inevitable conclusion that the appellants have not used the said GP sheets in the manufacture of their final product. This is specifically so as the Revenue has failed to produce any evidence on record to establish that the said GP sheets stand cleared by the appellant in the open market and also to establish that the appellants have procured the HR/CR sheets from any other source. 17. It is also seen that the appellants have produced the parts manufactured by them from GP sheets before the earlier Commissioner (Appeals). Though no reliance can be placed on the findings of the appellate authority in his earlier order, nevertheless, I find that the said facts remains unrebutted. 18. The appellants have also taken a categorical stand that there was no benefit for them the produce HR/CR sheets from grey market and obtain bills of GP sheets since both were ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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