TMI Blog2019 (4) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ows that the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants were not manufactured the goods during the impugned period. Similar issue on identical facts came up before this Tribunal in the case of Nanda Mint and Pine Chemicals Ltd. [2018 (10) TMI 877 - CESTAT CHANDIGARH], where it was held that 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. The appellant was manufacturer during the impugned period and paid the duty on the goods manufactured by them, therefore, duty cannot be demanded on the allegation that the appellant was not a manufacturer - Appeal allowed - decided in favor of appellant. - Appeal No. E/60213/2019 - FINAL ORDER No. 60367/2019 - Dated:- 1-4-2019 - Mr. ASHOK JINDAL, MEMBER (JINDAL) And Mr. C L MAHAR, MEMBER (TECHNICAL) Shri Anurag Mishra, Ms. Trapti Gupta, Advocates for the Appellant Shri Vij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant and submits that no investigation was conducted at the end of the appellants to ascertain the fact whether the appellant 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 the appellant and after manufacturing the goods were sold to the buyer located in the state of U.P. As these reports itself prove that raw material as well as finished goods has crossed the boarders, therefore, it cannot be said that the appellant has not manufactured the goods. It is also submitted that during the course of investigation, itself the appellant were allowed to continue their manufacturing activity, shows that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant were used in manufacture of goods by the buyers. The adjudicating authority has ignored the following facts:- (a) The certificate from Commercial Tax Officer, Jammu. (b) The certificate from General Manger, District Industries Centre, Jammu. (c) Permission for running the factory into three shifts throughout the year from Inspector of Factories and Boilers, Jammu. (d) Permission for installation of additional machinery for enhancing its capacity/ manufacturing additional product inter-alia on the condition that unit will operate on DG sets. (e) Annual financial statement in form ER-4 and Annual Installed capacity production. (f) The periodic returns submitted to inspector of Factories. (g) Annual returns relating to employee i.e. ESI EPF return submitted to the State Government of Jammu Kashmir. (h) The audited financial statement of the appellant for the year 2007- 2008, 2008-2009 and 2009-2010. (i) The certificate issued from Chartered accountant dated certifying total cost of the project of appellant. (j) The letter issued by the Inspector of Factories Jammu permitting installation of boiler. 4. It is also submitted that procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not manufactured the goods at all. 10. 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 during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the movements of raw material and finished goods. We further take note of the fact that the during the period of investigation itself, the appellants were allowed continue their activity by procuring inputs from UP based supplier and selling goods 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 were 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 manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 investigation conducted by the Commissioner of Central Excise, Merrut is not sustainable. 8. Further, we take note of the fact that during the period of investigation itself, the appellant 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. 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 Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable. 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 record, we find that the basic allegations in the Show Cause Notice was that M/s Arora Aromatics did not receive inputs on which they availed Cenvat credit basically on the contention of Revenue that M/s Ruchi Infotech System, Jammu did 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 inthe 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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, therefore, on the basis of evidences available on record, we hold that 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. In view of this, we set aside the impugned order and allow the appeal with consequential relief if any. 12. In view of the above analysis, we hold that the appellant was manufacturer during the impugned period and paid the duty on the goods manufactured by them, therefore, duty cannot be demanded on the allegation that the appellant was not a manufacturer. In view of the above, we set aside the impugned order and allow the appeal with consequential relief. (Dictated pronounced in the Court) - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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