TMI Blog2006 (7) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER [Order per : Krishna Kumar, Member (J)]. - Heard both sides. 2. The issue relates to fraudulent availment of modvat credit on invalid documents and imposition of penalty on the main appellant as well as co-noticees. We have perused the impugned order. After perusal of the same and the records, we find that the order of the Commissioner while dis-allowing the modvat credit is solely based on various oral statements. Briefly stated the facts of the case are that on the specific information that M/s. Classic Strips Pvt. Ltd. the manufacturer of Printed self-adhesive PVC stickers/strips availed modvat/Cenvat facility under the then Rule 57A of Central Excise Rules, 1944 (now Rule 4 of the Cenvat Credit Rules, 2002). The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was clear that the Department had willfully suppressed the outcome of the UDCT opinion. The failure of the investigation to carry out proper investigation could not be at the expense of the appellant and to their prejudice. 4. The ld. DR. has reiterated the impugned order. After hearing and perusal of the records, we find that for the following reasons we need to waive the pre-deposit and after waiver allow the appeals at the stay stage itself :- (a) The Commissioner has failed to carry out the direction of the Tribunal as contained in the order dated 24-6-2004. (b) The Commissioner has failed to consider the documentary evidence relied on by the appellants. (c) The Commissioner has only chosen to follow the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has not been negated by the respondent himself. Besides, the non-maintenance of any records by the transporters is also apparently not an issue of concern to the respondent while the perfectly tallying stocks and absence of any statutory lapse or shortcoming on part of the appellants is of no consequence to the respondent. (g) It is clear from the Para 114 of the impugned order that there was contradictions in the statement of transporters and as such the statement could not have been relied on in the impugned show cause notice and ultimately on the basis of the present impugned order. Without upholding the relevant documentary evidence it was not competent for the Commissioner to have chosen not to make proper enquires and asce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documentary evidence produced by the appellant. (i) The whole case of the Department is based on assumption and presumption, conjunctures and surmises and no positive evidence has been brought on record by the Commissioner to substantiate the allegation made against the appellant. The direction by the Tribunal as contained in the remand order has been totally ignored by the Commissioner and the Commissioner has merely followed the order of his predecessor. This itself is sufficient to set aside the impugned order. Since there is no willful mis-statement or suppression on the part of the appellant the question of invoking longer period does not arise and the demand is, therefore, time barred. (j) Since the demand itself is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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