TMI Blog2017 (3) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... t the conclusion that 109.512 MT of PP granules on which cenvat credit demand of ₹ 10,66,300/- has been confirmed was either diverted or clandestinely removed. Without the fact of clandestine removal being on record, it is not legal to disallow cenvat credit for the subject goods, if the same had been received by assessee-appellant in the factory - The impugned order notes that the subject goods were received by the appellant and when there is no diversion or clandestine removal of 109.552 MT of material, the denial of cenvat credit on the same cannot be legally sustained. Therefore, this issue needs fresh examination - appeal allowed by way of remand. - 57191 of 2013, 57291 of 2013 - F. O. Nos. 50727 – 50728/ 2017 - Dated:- 9-2-2017 - Mr. (Dr.) Satish Chandra, President and Mr. Ashok K. Arya, Member (Technical) Sh. G. R. Singh, AR for the Revenue Sh. Hemant Bajaj, Advocate for the assessee ORDER These two appeals are against the common order-in-original No. 90/2012(CE) dated 31.12.2012 passed by the Commissioner Central Excise, Jaipur. 1.1. The impugned order dated 31.12.2012 adjudicates show cause notice dated 29.07.2011 issued to the appellant, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made by the ld. Commissioner in para 75 that reversal of cenvat credit of ₹ 31,82,272/- was made on removal of inputs as such to their Haridwar Unit, which fact was also regularised by the Deputy Commissioner, Dehradun vide its letter dated 16.08.2010, confirming the receipt of PP Granules by Haridwar Unit of Genus Power. It is an undisputed fact that the waste generated during the processing of PP granules have been cleared on payment of excise duty and this fact is also recorded in the impugned order. Thus, under the situations it clearly establishes the factum of receipt of input by Genus Power and cenvat credit has been correctly availed by Genus Power. (c) It is submitted that the ld. Commissioner after perusing and satisfying himself with the records, invoices, ledgers, bilties submitted by SPME came to the conclusion that the said inputs were actually received by Genus Power against payments made by cheque. Thus, in absence of any evidence brought by the department to the contrary to disprove the observation made by the ld. Commissioner, the charge of non receipt of inputs is not sustainable. Hence, cenvat credit cannot be disallowed. (d) In support of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is to be allowed whose statements have been relied upon by the department. It is submitted that though Genus Power has specifically requested for cross examination of all those persons whose statements have been relied upon by the department the ld. Commissioner did not address this issue and straightaway negated the statements of transporters relied upon by the department. It is submitted that as per Section 9D of the Central Excise Act, any witness whose statement is relied upon has to be examined in chief by the adjudicating authority and thereafter produced for cross-examination before the assessee before the statement can be taken as evidence against the assessee. In this regard, reliance is placed on the following judicial precedents: Sumatex Services Pvt. Ltd. vs. CCE, Jaipur-II, FO No. 55415-55416/2016 dated 28.11.2016. J K Cigarettes Ltd. v. CCE- 2009 (242) ELT 189 (Del.) Basudev Garg vs. CC 2013 (294) ELT 353 (Del.) Somendu Saha v. UOI 2015 (322) ELT 462 (Cal.) CCE v. Shyam Traders 2016 (333) ELT 389 (All.) G-Tech Industries v. UOI-2016 (339) ELT 209 (P H). 6. Ld. AR for the Revenue inter-alia based on appeal memorandum submits as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bona fide purchaser of the alleged goods for a price which included the duty element also. It is on the record that noticee have reversed the cenvat amounting to ₹ 31,82,272/- on as such clearances of 275.865 MT of PP Granules to their Haridwar unit. The said clearances of PP granules gets established from the report of Deputy Commissioner, Central Excise Division, Dehradun as intimated vide their letter C. No. II(8)Prev./Follow-up/Hero Honda/2010/11714 dated 16.08.2010. From the above it is observed that the goods in question were received by their Haridwar unit. It is an on record that neither the department has adduced evidence beyond doubt that the alleged inputs were not received in the unit and it was only a paper transaction nor has it been proved that any other raw material was received and used by the appellant for production of their final product. If department is of the view that it was only a paper transaction then it should have proved that there was flow back of money from dealer to the noticee. On the contrary records produced by the noticee shows bona fide transaction on their part . Thus it appears to be the fact that the goods were received by the Hari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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