TMI Blog2017 (3) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... ER Revenue is in appeal against order-in-appeal no.P-III/VM/259/201 dated 15 th October 2010 of Commissioner of Central Excise (Appeals), Pune - III which has dropped recovery of ₹ 27,11,481/- confirmed by the original authority in proceedings against M/s Kirloskar Oil Engine Ltd for wrongful availment of CENVAT credit on inputs that were found to be short during the period from April 2004 to March 2007 during physical stock-taking and based on the cost audit report. 2. It is the contention of Revenue that the appellant is entitled to avail CENVAT credit only to the extent that the inputs are actually utilized in manufacture and that the burden of establishing legitimate use devolves on the assessee by proper accounting. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as statutes. Explaining that the Tribunal, in Greaves Cotton Ltd (supra), had set aside the confirmation of demand consequent upon failure to account for inputs despite the claim of assessee that the decision in re Maruti Udyog Ltd absolved them of any such requirement which the Hon'ble High Court of Bombay held to be improper as that decision in re Maruti Udyog Ltd was not binding upon the High Court and appeared to have been motivated by sympathy without reference to legal provisions and that the scope for mischief by the assessee in accounting entries could not be ruled out. Other decisions were also relied upon. 4. The Tribunal, in Philips Carbons Ltd v. Commissioner of Central Excise, Bolpur [2013 (29) STR 217 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. In the instant case the shortages account for only 0.07% to 0.16% in case of Engine Division and 0.02% to 0.06% in case of Bearing Division. When compared to the nature of manufacturing activities carried by the appellant the above shortage is a minor fraction of the total consumption of raw materials. The main decision which supports the appellant s case is the decision of the Hon ble Tribunal in the case of M/s Maruti Udyog v. CCE, Delhi - III cited at [2004 (173) ELT 382 (CESTAT)]. In the above case CESTAT held that Cenvat/Modvat on the input-shortage to the extent of small fraction of 0.24% of the total input received, noticed on account of physical stock verification, and remained un-recorded, being within tolerance limits as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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