TMI Blog2019 (4) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... the assumption and presumption, therefore, it cannot be held that the appellants were not manufactured the goods during the impugned period. The appellant M/s Abhay Chemicals was the 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. Consequently, the cenvat credit can’t be denied to the recipient of goods located in the State of U.P i.e. M/s Siddhant Chemicals and M/s Neeru Enterprises. Therefore, no penalty is imposable on the appellants. Appeal allowed - decided in favor of appellant. - Appeal Nos. E/61900/2018 With E/60806/2018, E/60059-60062/2019 - FINAL ORDER No. 60368-60373/2019 - Dated:- 2-4-2019 - Mr. ASHOK JINDAL, MEMBER (JINDAL) And Mr. C L MAHAR, MEMBER (TECHNICAL) Shri B. L. Narsimhan and Mr. Anurag Mishra, Advocate for the Appellant Shri Atul Handa, Authorised Representative for the Respondent ORDER Per: Mr. Ashok Jindal The appellants are in appeals against the impugned orders wherein demand of recovery of erroneously refund claimed by M/s Abhay Chemicals under Notification No. 56/2002-CE date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture by the appellants. Therefore, by way of the impugned order, the cash refunded to the appellants, namely, Abhay Chemicals was sought to be demanded and cenvat credit availed by M/s Siddhant Chemicals M/s Neeru Enterprises was denied and penalties on all the appellants were imposed. Against the said orders, the appellants are in appeals before us. 3. Ld. Counsel appearing on behalf of the appellants 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 appellants and after manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory and nothing adverse was reported. He was further submits that the appellant 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 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 thatunit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are based on the investigation conducted 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. 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 appellant was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicator. 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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