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TMI Blog2016 (10) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... unt under section 11AC besides charging interest under section 11AB of the Central Excise Act, 1944, for the period from December 2002 to August 2005 for which show cause notice dated 29.11.2005 was issued to the appellant. 2. This is the second round of litigation. The respondent had passed an Order-in-Original virtually exparte against the appellant confirming the same demands vide his Order-in-Original No.2/Commr./MP/2006 dated 27.2.2006. Against the order of the respondent, the appellant filed appeal with stay application before the Tribunal and the Tribunal vide Final Order No.568/06 and stay order No.811/06 dated 3.7.2006 in Central Excise appeal No.1492/06 allowed the appeal of the assessee by remand and set aside the exparte order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s capital goods on which credit was taken, a per Panchnama dated 6/7.1.2005. The officers also took physical verification of stock and statement of one Mr. Rajeev J Malviya on 6/7.1.2005. The imported as well as indigenous procurement of inputs and capital goods and credit taken was sought to be verified and explained to the satisfaction of the Preventive officers. The documents for purchase of inputs were also correlated with the invoices and the transport documents for inward receipt of the same. The Preventive officers felt that the appellant (ICI India Ltd.) should have all duty paying documents in its own name and not in the name of Johnson Matthey Chemicals Pvt. Ltd. which took over the control and management of the appellant's busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h by the appellant. 6. The Cenvat Credit was sought to be denied on the ground of duty paying documents being in the name of JMCIPL with the same address of the assessee's factory and indicated therein as A/c ICI India Limited (former name), by which correlation was easily made. The imported goods for which Bill of Entry was filed for clearance also showed in the respective Bills of Entry and other documents the name of JMCIPL as purchaser/importer on behalf of ICI India Limited and hence, the credit was claimed as admissible to the appellant. It was also made clear that no manufacturing activity was done by JMCIPL and no credit was taken or claimed by it and therefore, credit on all such inputs to the appellant should not be denied. 7. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice has again been confirmed by the respondent without any basis or justification valid in law. One of the reasons given for rejecting the assessee's pleas is that Gate Register had not been produced by the assessee for inward receipt of inputs and clearance and removal of finished goods. There was no such issue raised in the show-cause notice and the rejection of the assessee's submissions based on such a new plea taken by the Revenue in the impugned order cannot be accepted or upheld. It is also not proper for the respondent to have refused to accept the duty paying documents and other records showing the name of JMCIPL A/c ICI India Limited at the same address as valid duty paying documents. It was also wrong for the revenue to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of finished goods and clearance thereof on payment of duty by the appellant, all of which are accepted. It is therefore, pleased that the impugned order by the Respondent cannot be sustained, both on facts and in law. 11. The departmental representative has relied upon the impugned order passed by the respondent and has referred also to the show cause notice and allegations therein in support. 12. We have heard both sides at length and perused the records. We find that the entire case of the revenue confirming the impugned demand by denying Cenvat Credit is unsustainable, both on facts and in law. Nothing is brought on record by the revenue to prove that the assessee did not receive duty paid inputs and/or it did not utilise the same f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een disregarded by the respondent. Further, the action of the respondent in confirming again the same demand against the appellant ignoring the verification and correctness thereof made by the Assistant Commissioner pursuant to the order of remand made by the Tribunal earlier, cannot be upheld. The law is well settled that the revenue cannot pass orders arbitrarily and cannot deny the credit or raise demand merely based on assumptions and presumptions. When facts on records are verified and found to be contrary to the allegations made in the notice, the demand as per notice cannot be confirmed again. The decision of the Supreme Court in Dhakeswari Cotton Mills Ltd. Vs. CIT AIR 1955 SC 65 clearly supports the assessee as the Commissioner did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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