TMI Blog2018 (10) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods manufactured by them, therefore, duty cannot be demanded on the allegation that the appellant was not a manufacturer - M/s Narbada was the manufacturer of the goods and supplied to M/s Nector, therefore, cenvat credit cannot be denied to M/s Nector - appeal allowed - decided in favor of appellant. - E/60916/2017, E/60002-60004/2018 - 63193-63196/2018 - Dated:- 28-8-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) For the Appellant : Shri. Sudhir Malhotra-Advocate For the Respondent : Ms. Seema Arora, AR. ORDER PER ASHOK JINDAL: M/s Narbada Industries and Shri. Sanjiv Goyal filed the appeals against the impugned order wherein the duty has been demanded along with interest and penalties on both the appellants have been imposed alleging that the appellants were not the manufacturer and issued cenvatable invoices enabling to their buyers to avail inadmissible cenvat credit. 2. M/s Nectar Lifesciences Ltd. (in short Nectar) and M/s Narbada Industries (in short Narbada) filed these appeals against the impugned orders, wherein, the cenvat credit sought to be denied on the invoices issued by M/s Narbada to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nectar is also not entitled to avail cenvat credit on the invoices issued by M/s Narbada, therefore, cenvat credit availed by M/s Nectar sought to be denied. Against those orders, the appellants are in appeal before us. 5. Shri. Sudhir Malhotra, Advocate, appearing on behalf of the appellant and submits that no investigation was conducted at the end of the appellants to ascertain the fact whether M/s Narbada is manufacturer or not. Moreover, the case has been booked only on the basis of investigation conducted by the Commissioner Merrut-II. He further submits that all the vehicles used for transportation alleged raw material/trucks and there cannot be 100% of consignments moved one place to another on papers. The existence of trucks itself prove the case of the appellant. Moreover, the entries of movement of trucks at excise toll post at Lakhanpur and Madhopur toll post Punjab certified that all the raw materials and manufactured goods have been crossed this toll borders which itself prove that raw material was received by M/s Narbada and after manufacturing the goods were sold to M/s Nectar. As these reports itself prove that raw material as well as finished goods has crossed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as per report dated 28.04.2010, it was opined that entries of raw material DIC officers was regularly verified purchase consignments, Range Officers time to time visit the factory and nothing adverse was reported. He was further submits that the appellant (M/s Narbada) was operating under Notification No. 56/2002-CE dated 14.11.2002 and filing refund claim of the duty paid through PLA and all the refund claims have been sanctioned to then after due verification by the Jurisdictional Range Officer by passing speaking orders. He further submits that raw material received by the appellant were used in manufacture of goods by M/s Nectar and M/s Nectar filed declaration dated 01.06.2009 under Notification No. 21/2004- CE- NT dated 06.04.2004 as amended for availing rebate of duty @8.24% paid on their inputs i.e. Multi rectified menthol oil and de-Terpinated falling under sub heading 33012400 for use in manufacturer of two exempted goods i.e. menthol BP/USP-sub heading 29061100 and menthol crystalsub heading 30039021. After physical verification, the permission was granted vide letter dated 18.08.2009 by Ld. Deputy Commissioner, Central Excise, Derabassi, fixing therein input-output no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant. Moreover, it is his submission that refund claim sanctioned under Notification No. 56/2002-CE dated 14.11.2002, have not been challenged by the Revenue, therefore, in the light of the decision of Flock India Pvt. Ltd. Reported in 2000 (120) ELT 285 (SC) and C.EX., Shillong Vs. Jellalpore Tea Estate 2011 (268) ELT 14 (Gau.), the duty cannot be demanded from the appellant. 7. He also submitted that the Jurisdictional Commissioner has sent report to the Chief Commissioner dated 21.05.2010 and the same has not been considered by the adjudicating authority. Moreover, the show cause notice has been issued by invoking extended period of limitation, therefore, the same is not sustainable. 8. He also submitted that the department drew samples for final product on various occasions. Moreover, PBC checks were undertaken, he also submits that in case of Nanda Mint and Pine Chemical Ltd. , a similar show cause notice were issued and demand of duty was confirmed but this Tribunal in Appeal No. E/60052/2016 vide Final order No. 63177 / 2018 set aside the demand and held that the said assessee is a manufacturer of goods. 8. It is further contention tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nonfunctional and Transporters who did not tum up for tendering statements were declared non-existent etc. however, on close scrutiny of the records, the following facts emerges: (i) Most of the consignments of raw material were found entered at the Toll barrier. (ii) The Officers of District Industry Centre, who have assessed and fixed the capacity of manufacturing units, have been regularly verifying their purchase consignments. (iii) The Range staff had also been visiting these units for PBC Checks/verification of plant/machineries and reported nothing adverse against these units. 6. Therefore, it may not be strongly alleged with certainty that during the period 2005-2006 to 2008-2009, these 27 units have not purchased crude Mentha oil and therefore have not manufactured any Menthol products in their units at all. There is hardly any time left for further investigation to strengthen the case as process is very time consuming and most of these of units have closed their factories due to withdrawal of Central Excise Duty on all Mentha products w.e.f 27.02.2010. Thus, the investigation may not be in tune with the investigations conducted by the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ammu were bogus units, these units did not have any infrastructure to manufacture the said products, were non-functional and Transporters who did not tum up for tendering statements were declared non-existent etc. however, on close scrutiny of the records, the following facts emerges: (i) Most of the consignments of raw material were found entered at the Toll barrier. (ii) The Officers of District Industry Centre, who have assessed and fixed the capacity of manufacturing units, have been regularly verifying their purchase consignments. (iii) The Range staff had also been visiting these units for PBC Checks/verification of plant/machineries and reported nothing adverse against these units. 6. Therefore, it may not be strongly alleged with certainty that during the period 2005-2006 to 2008-2009, these 27 units have not purchased crude Mentha oil and therefore have not manufactured any Menthol products in their units at all. There is hardly any time left for further investigation to strengthen the case as process is very time consuming and most of these of units have closed their factories due to withdrawal of Central Excise Duty on all Mentha products w.e.f 27.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem of assessment in Central Excise is record based. The Officer assessing the duty is not required to be present when the goods are being manufactured to witness the process of manufacture. The adjudication is to be done on the basis of evidence produced before the Adjudicating Authority. As per Evidence Act evidence in totality is to be taken into consideration and therefore, finding recorded in the impugned Order by the Original Authority who passed the said Order dated 29/01/2010 is bad in law. The Original Authority did not understand the process either of assessments or of adjudication. Further the investigations were not undertaken to find out wherefrom the inputs were received by the appellant for the goods they manufactured and on which they paid duty and which were exported, if they had been received the inputs from M/s Ruchi Infotech System, Jammu or the other suppliers of inputs. Further, the additional evidence submitted by the appellant indicated that in respect of units in Jammu, Central Excise Officers visited the factory premises and seen that the manufacturing process going on was evidence by them and such evidences being on record and submitted by the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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