TMI Blog2018 (11) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... to their buyers - the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants had not manufactured the goods during the impugned period. The appellant (M/s S.B Aromatics) was manufacturer during the impugned period and paid the duty on the goods manufactured by them, therefore, duty on account of erroneous refund cannot be demanded on the allegation that the appellant was not a manufacturer - appeal allowed - decided in favor of appellant. - E/60082/2016, E/60080/2016, E/60079/2016 - FINAL ORDER NO: 63388-63390/2018 - Dated:- 26-10-2018 - Mr. Ashok Jindal, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri. Anurag Mishra, Shri. Pragya Panday, Advocates- for the appellant Shri. Harvinder Singh, AR. - for the respondent ORDER Per Ashok Jindal: M/s S.B Aromatics, Shri. Rohit Aggarwal and M/s Akash Traders filed the appeals against the impugned order wherein the duty has been demanded along with interest and penalties on all the appellants have been imposed alleging that the appellants had not the manufactured the goods and issued cenvatable invoices enabling to their buyers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Lakhanpur who vide its report confirmed that the consignments were found reported at said post. As per report of the Excise and Taxation Commissioner, the consignments had found reported at ICC Madhopur. The Revenue has raised demand in respect of all the consignments whereas as per these reports itself most of the consignments found reported at the barriers. The Commissioner of Central Excise, Jammu vide report dated 21.05.2010 questioned issue of show cause notice wherein it has been opined that entries of raw material were received by the appellants DIC Officers had regularly verified purchase consignments; range officers (time to time) visited factory of the appellant and nothing adverse was reported . A similar report dated 28.04.2010 was prepared by preventive staff, Jammu. On the identical allegations demand was raised from a North East based units. The said party had also purchased raw material from one of commission agents of appellant and the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods manufacturing to their buyers. During the course of investigation, itself shows that the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants had not manufactured the goods during the impugned period. Moreover, as per the report of Jurisdictional Commissioner to Chief Commissioner dated 21.05.2010 reveals as under: 5. Thus the officers of Merrut-II Commissionerate, instead of selecting the consignments where no excisable goods were manufactured/supplied, have generalized that all the purchases of crude Mentha oil by these Mentha units located at Jammu 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Admittedly, duty is payable on the manufacture of goods and as per the report of the Commissioner of Central Excise, Jammu dated 25.02.2010, it has been revealed as under: 5. Thus the officers of Merrut-II Commissionerate, instead of selecting the consignments where no excisable goods were manufactured/supplied, have generalized that all the purchases of crude Mentha oil by these Mentha units located at Jammu 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have facility to manufacture the inputs received by M/s Arora Aromatics and that the goods did not move from Jammu Kashmir to the appellants factory and therefore, Cenvat credit was not admissible. The evidence submitted by the appellant in the form of Order-in-Original passed by Commissioner of Central Excise, Jammu on 31/03/2008, wherein it was held that M/s Infotech System, Jammu was manufacturing the goods was not accepted by the Original Authority stating that the said Commissioner, Jammu did not see himself that the goods have been manufactured. If such a logic is accepted then the basic system of assessment by Authorities under tax statute needs to be concluded to have been not properly understood by the Adjudicating Authority. The present system 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 Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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