TMI Blog2018 (10) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant continued their activity by procuring inputs from U.P and selling the goods after manufacturing to the U.P based buyers and the Department allowed to continue the same during the course of investigation which shows that the allegation on the basis of investigation conducted at the end of Commissioner of Central Excise, Merrut is not sustainable that the appellant is not manufacturer the goods. As there is no corroborative evidence to show that the appellant were not manufacturing the goods, therefore, the allegation alleged in the show cause notice is not sustainable. Without bringing any concrete evidence against the appellant on record, the proceedings against the appellant are not sustainable - the appellant were manufacturing unit in the state of Jammu & Kashmir is entitled for benefit of the exemption Notification No. 56/2002- CE dated 14.11.2002 and claimed the refund of duty paid through PLA - appeal allowed - decided in favor of appellant. - E/60052/2016 - 63177/2018 - Dated:- 28-8-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) For the Appellant : Shri. Jagmohan Bansal, Advocate For the Respondent : Shri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds that the farmers are non existence ensuring non supply of raw material by commission agents to J K based units and absence of evidence of power by the appellant. Therefore, by way of the impugned order, the cash refunded to the appellant was sought to be demanded. Against the said order, the appellant is before us. 3. The ld. Counsel for the appellant submits that as in the impugned order itself, all the vehicles used for transportation of alleged raw material are trucks. There can be no case where hundreds of consignments moved from one place to another place on papers and all the vehicles are trucks. The existence of trucks itself prove the case of appellant. The Revenue sought report from Deputy Commissioner Excise, Toll Post, Lakanpur who vide its report dated 20.10.2008 confirmed that 227 consignments were found reported at said post. As per report dated 12.11.2008, the Excise and Taxation Commissioner, Patiala, 257 consignments had reported at ICC Madhopur. The Revenue has raised demand in respect of all the consignments whereas as per these reports itself more than 60% consignments found reported at the barriers. It is his further submissions that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the parties and considered the submissions. 6. We find that in this case the sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were non-existence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all. 7. We take a note of the fact that the check post movement of trucks which were carrying inputs as well as finished goods were found entered. We further take note of the fact that the appellant has produced the evidence of the entry of all the transport vehicles i.e. trucks which have entered in the state of Punjab and have left the state of Punjab, as the same has been certified by the Punjab Sales Tax Department having entries of entry and exit all the vehicles, therefore, it cannot be said that the raw material/finished goods have never entered or left in the state of Jammu Kashmir, therefore, the allegation on the basis of the investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it has been clearly mentioned that during the periodical checks by the departmental officers, the appellant found manufacturing the goods. Moreover, no discrepancy was found and on toll barriers it was found that the vehicles carried inputs/finished goods found entered. Moreover, the District Centre also certified the said fact. 10. We further take note of the fact that the various other departments namely Pollution Control Department, District Industries Department, Electrical Department have visited the factory of the appellant and found functioning. All these facts have not been disputed by the Revenue. As there is no corroborative evidence to show that the appellant were not manufacturing the goods, therefore, the allegation alleged in the show cause notice is not sustainable. 11. We further take note of the fact that on the basis of the same investigation conducted by the Commissioner of Central Excise, Merrut, the case was booked against the various parties namely M/s Arora Aromatic Others Vide Final Order No. 71939-71959/2017 dated 01.11.2017, this Tribunal observed as under: 10. Having considered the rival contentions and on perusal of the facts on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority, Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. We, therefore, set aside both the impugned Orders-in-Original dated 29/01/2010 29/03/2011 and allow all the appeals filed by appellant. The appellant shall be entitled for consequential relief. All the demand and penalties imposed are also set aside. All the Miscellaneous/Stay Applications stand disposed, as infructuous. 12. In view of the above observations, we hold that without bringing any concrete evidence against the appellant on record, the proceedings against the appellant are not sustainable, therefore, the show cause notice issued to the appellant is only on the basis of the assumption and presumption and investigation conducted by the Commissioner of Central Excise, Merrut, but without conducting any investigation at the end of the appellant, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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