TMI Blog2019 (1) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department was able to prove that in the final product the LAB was not used/utilized at all, the Department was not justified in holding that the assessee wrongly availed the Cenvat Credit on LAB. So far as some of the statement is concerned, which are relied upon by the original adjudicating authority while passing the impugned order, the Learned Commissioner (Appeals) specifically observed that they are restricted statement, and therefore, the same could not have been relied upon. Appeal dismissed - decided against appellant-Revenue. - R/Tax Appeal No. 741 of 2018 with R/Tax Appeal No. 742 of 2018 - - - Dated:- 12-7-2018 - M.R. Shah and A.Y. Kogje, JJ. Shri P.Y. Divyeshvar, for the Appellant. JUDGMENT [ Judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior intelligence that the appellants have not utilized LAB in manufacture of their final product still they had only recorded statement of Shri Vijay A. Vora, Excise Clerk of M/s. Ganesh Chem Tech that it did not contain LAB. I further find that the adjudicating authority has heavily relied on post facto opinion of Dr. Y.K. Agarwal, Director of School of Science, Gujarat University which based on technical literature of the final products manufactured by the appellants stating that LAB is not essential raw material/ingredient in the manufacture of their final products. I find that such opinion was obtained in some another case of the Commissionerate and not in the case of appellants the copy of the opinion of Dr. Y.K. Agarwal, Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tically. It is universal fact that the onus to prove irregular availment of Cenvat credit is on the part of Department. In view of the statement of dealer Shri Jayesh M. Bhimani transporter Shri Ravindra M. Shah it cannot be disputed that LAB was not delivered by dealer Jayesh M. Bhimani to the appellants at Sr. No. 1 of the table above. The initial statement of Naresh F. Shah that he used to take payment by cheque get back 98% by cash is also not reliable as there is no evidence to support this statement as investigation even did not confirm that there have been cash withdrawal by Shri Jayesh M. Bhimani from any of his accounts. I therefore hold that the Department has to prove with documentary evidences about diversion of 519.511 Mts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was used in the input of the final product, and therefore, unless and until the Department was able to prove that in the final product the LAB was not used/utilized at all, the Department was not justified in holding that the assessee wrongly availed the Cenvat Credit on LAB. So far as other circumstances are concerned, statement of other persons, which were earlier relied upon by the original adjudicating authority while passing the first order, were as such considered and dealt with by the Learned Commissioner (Appeals) and in fact the Learned Commissioner (Appeals) came to a conclusion on the basis of the same. However, so far as some of the statement is concerned, which are relied upon by the original adjudicating authority while pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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