9911796707
TMI Blog2019 (10) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the appellant No.2 was visited, thereafter the statement of proprietor was recorded wherein he stated that the appellant is engaged in the manufacture of HR/CR end cutting pcs and trimming and scrap; that they sell goods in the same condition as are received by them and no process whatsoever is ever carried out by them on thee goods; that they mainly purchase their goods from Bhushan Group firms, SAIL, Tata Steels, etc; that they issue cenvatable invoices as well as non cenvatable invoices. On the basis of statement and description of the goods, it was alleged that the some goods are not in the nature of the scrap and appellant No.2 has issued invoices to appellant No.1 by making the word "scrap" has been added on the goods purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants. The matter was adjudicated, the credit was denied and penalties on both appellants were imposed. Against the said order, the appellants are before us. 3. Ld. Counsel for the appellants submits that there was no allegation of diversion of goods in the show cause notice or non receipt of inputs by the appellant No.1. He further submits that the adjudicating authority has gone beyond the scope of show cause notice and confirmed the demand alleging that the impugned goods have been diverted by the dealer and were not received in the factory of the appellant No.1. Therefore, the impugned order is to be set aside relying on the decision of Hon'ble Supreme Court in the case of Reckitt & Colman of India Limited vs. CCE-1996 (88) ELT 641 (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sell goods to various customers for as such use of impugned goods, however, after failing they used to sell goods to furnaces like appellant who made prompt payments, to avoid losses by standing stock. The appellant's manager in his statement clearly explained manner of consumption of goods in their factory. None of the three suppliers of dealers has stated the impugned goods cannot be melted in furnace. Therefore, he submits that the impugned order be set aside. To support his contention, he relied upon the decision of this Tribunal in the case of Sharman Strips Pvt.Ltd. and others vide Final Order No.63607- 63618/2018 dt.6.12.2018, Dashmesh Castings Pvt.Ltd.-2015 (320) ELT 450 (Tri.-Del.). 7. On the other hand, Ld.AR supported the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion solely on the ground that the said goods in question cannot be the inputs for the appellant M/s. Tharaj to manufacture their final products. 8. We take note of the fact that the total quantity of inputs in question for denial of credit is 6.14% of the total purchase by M/s.Tharaj, which is negligible . We further take note of the fact that all the suppliers of the said inputs admitted that they have supplied the goods to the appellant M/s.Tharaj and received payment thorugh account payee cheque. We further take note of the fact no investigation was conducted at the end of the transporter by the Revenue to prove that the goods have not been received by the appellant in their factory. Moreover, no investigation was conducted to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t M/s.Tharaj is allowed and penalty is not imposable on the appellant and co-appellants." 10. We further take note of the fact that the Revenue has not come with any evidence to show that the said inputs cannot be used by the appellant-manufacturer to manufacture their final products. No expert opinion has been obtained by the Revenue. No statement of transporter has been recorded to allege diversion of the goods. Therefore, the credit cannot be denied. 11. Further, we find that in the impugned order, the adjudicating authority has alleged that there is diversion of goods and non receipt of goods by the appellant- manufacturer. As there is no such allegation in the show cause notice to allege that the goods were never received by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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