TMI Blog2019 (3) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... goods manufactured by them, therefore, duty on account of erroneous refund cannot be demanded on the allegation that the appellant was not a manufacturer. The demand against the supplier of invoices is not sustainable and it has been held that the suppliers are manufacture of goods and have cleared the same on payment of duty, in that circumstances, the cenvat credit availed by the appellant cannot be denied - the appellant have correctly availed the CENVAT credit on the goods supplied by their suppliers located in the state of Jammu & Kashmir. Appeal allowed - decided in favor of appellant. - E/60082-60083,60085,60087/2019 - A/60194-60197/2019 - Dated:- 21-2-2019 - Mr. Ashok Jindal, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) For Appellant (s): Shri Anurag Mishra, Advocate For Respondent (s): Shri B. Ram, AR ORDER Per: Mr. Ashok Jindal The facts of the case are that an investigation was started at the end of the office of Commissioner of Central Excise, Merrut-II against various units located in their jurisdiction who were purchasing Menthol Solution and De-mentholised Oil from Jammu Kashmir based units. The Meerut Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is selling the goods and it was found that there was movement of goods inward/outward. 5. We also take note of the fact that this Tribunal in para 12 and 13 of the order in the case of S.B. Aromatics (supra) has observed as under:- 11. We find that in this case the sole allegation against the appellant is based on the investigation conducted by Commissioner of Central Excise, Meerut, 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. 12. We further take note of the fact that, the investigation was not conducted at the end of the appellants and whole case has been based on the investigation conducted at Commissioner Central Excise, Merrut-II. Without investigation, it cannot be held that the appellants were not manufacturer of the finished goods during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the movements of ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018, wherein this Tribunal observed as under: 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant wherein 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of inputs was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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