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TMI Blog2017 (3) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ructures Limited (M/s GPIL in short), whereunder cenvat credit amounting to Rs. 10,66,300/- has been disallowed and an equivalent penalty has been imposed on M/s GPIL under Rule 15(2) of Cenvat Credit Rules, 2004. The appellant M/s GPIL is in appeal (No. 57291) inter-alia against confirmation of this demand of Rs. 10,66,300/-. 1.2. The Revenue is in cross-appeal (No. E/57191/2013) mainly stating that whole amount of cenvat credit of Rs. 53,30,722/- taken on the strength of 97 invoices issued by M/s SPM Enterprises, Delhi was wrongly availed by the assessee namely M/s GPIL and the adjudicating authority wrongly dropped the said demand of cenvat credit. 2. The assessee M/s GPIL has been represented by ld. Advocate Sh. Hemant Bajaj and Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact of receipt of inputs under the disputed invoices is further fortified by the observation made by the ld. Commissioner in para 75 that reversal of cenvat credit of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2015 (321) ELT A210 (SC). * CCE vs. Swati Polyester - 2015 (321) ELT 423 (Guj.) affirmed by Supreme Court in Commissioner v. Swati Polyester - 2015 (321) ELT A217 (SC). * CCE v Deora Wires N. Machines Pvt. Ltd. -2016 (332) ELT 393 (Guj.) B. For Appeal No. E/57291/2013 : (1) The confirmation of demand of Rs. 10,66,300/- against Genus Power has been made on a presumptive reasoning which was not even alleged in the impugned show cause notice. a) It is submitted that the show cause notice is the foundation of any proceeding under the Central Excise Law. It has been observed by the Hon'ble Supreme Court in the case of CCE vs. Brindavan Beverages (P) Ltd. - 2007 (231) ELT 487 (SC) that if the allegations in the show cause notice are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 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: A) Revenue's Appeal No. E/57191/2013: i) The findings of the Commissioner in the impugned order are contrary to settled legal position. The Commissioner heavily relied on the retraction made by Sh. S. K. Shukla, Assistant Manager and held that his retraction is admitted as department failed to investigate the matter and recorded his further statement. The retraction of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order observes as under:- "75. It is on the record that the noticee were receiving goods regularly from noticee No. 5 (SPM Enterprises) under invoices. These excise invoices contains all the particulars as prescribed under rules and above all the goods were received for further use in the manufacture of the final product which was supplied to various Electric Boards. The noticee have made payment of the goods inclusive of excise duty as evident from ledger. Therefore, they were a 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 Rs. 31,82,272/- on as such clearances of 275.865 MT of PP Granules to their Haridwar unit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 10,66,300/- and against the imposition of equivalent penalty on them. 9.1 The assessee -appellant mainly argues that once the input reached factory premises they should be allowed full credit when there is no case for diversion of input or clandestine clearance of the same against them. M/s GPIL, the appellant also argues that they have not been given opportunity to cross-examine the persons whose statements were relied upon for sustaining the demand of cenvat credit amounting to Rs. 10,66,300/-. However, we find that the impugned order has discussed in detail the issue of non use of the subject raw material for manufacturing by the assessee. The impugned order in its paragraphs 71, 72 and 78 discusses the use and non-use of the raw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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