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TMI Blog2019 (10) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of an equivalent amount of the duty has also been imposed upon Birla Tyres under Section 11AC of the Act. The Commissioner, however, dropped the balance duty demand of Rs. 24,53,668/- made in the show cause notice as also the proposal to impose penalty upon the officers. Being aggrieved by the part of the order against it Birla Tyres has preferred the appeal, being E/33/2009. The Department also, being aggrieved by the dropping of the balance duty demand of Rs. 24,53,668/-, has preferred an appeal, being E/35/2009. 2. The facts in brief of the instant case are as under: (a) One of the types of tyres manufactured by Birla Tyres during December 1999 to February 2003 in its factory was tyres used in animal drawn vehicles, known as ADV tyres, classifiable under Chapter Heading 4011.90 of the Central Excise Tariff Act (hereinafter referred to as "said goods"). During the material period, in terms of Notification Nos. 5/99-CE dated February 28, 1999, 6/2000-CE dated March 1, 2000 and 3/2001 dated March 1, 2001, the said goods were exempted from the whole of the duty of central excise leviable thereon. (b) For the manufacture of tyres and tubes, a large number of input material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als/inputs specified in the list were used in manufacture of ADV tyres, even though no such assertion was made by Kanti Chowdhury in his statement recorded under Section 14 of the Act. These inputs were also not incorporated in the CA certificates submitted for reversal of credit. (ii) Ignoring the CA certificates the Department on the basis of appellant's stock records, raised the impugned demand, ignoring that stock records consisted of various inputs which were never used for manufacture of ADV tyres. (iii) The demand of Rs. 60,89,992/-, detailed in Column 2 of the chart submitted during the course of hearing (out of total demand of Rs. 78,57,265/-), is ex-facie untenable since inputs on which this demand was raised were never used in manufacturing as would be observed from the statement of Shri Arindam Gupta, DGM Production, which is supported by the CA certificates submitted. These inputs are also not included in tentative list submitted by Shri Kanti Choudhury which is the base document on which the entire proceedings have been framed. Thus this allegation being factually incorrect, the demand of Rs. 60,89,992/- is unsustainable. (iv) The balance demand is of Rs. 17, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand is barred by limitation. The CA certificates were undisputedly duly submitted before the Department, as is evident from the records. Birla Tyres thus having disclosed to the Department, all relevant facts and materials, the proceedings are barred by the limitation, in the absence of any material to the contrary being disclosed, as per settled principle laid down by the Apex Court. (ix) As regards the Department's appeal, it would be seen from the impugned order that the demand was dropped since less quantity of fabric was used against the quantity alleged in the show cause notice. This was found on the basis of the very stock statement relied upon by the Department in issuing the show cause notice and confirming the balance demand on the basis thereof. There can thus be no challenge thereto and, hence, the Department's appeal is devoid of merit. 5. On behalf of the Department the findings of the Commissioner in the order are reiterated. 6. We have heard the parties and perused the appeal records. 6.1 In this case we find that a personal hearing was held by the then Adjudicating Authority on 21.10.2005 when the Commissioner required Birla Tyres to submit the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time. We do not find any specific finding of the Commissioner on this issue in the order and, hence, the contentions of Birla Tyres stand uncontroverted. There is also no other evidence disclosed in the said order or the show cause notice which would establish that any duty of the subject inputs were used in or in relation to the manufacture of ADV tyres. Consequently, the demand of Rs. 60,89,992/-, out of the total demand of Rs. 78,57,265/-, confirmed by the impugned order cannot be sustained. 6.3 The balance demand of Rs. 17,65,273/- is based on the premises that the following inputs were used in the manufacture of ADV tyres: "(a) Butyl - 301 (b) Neoprene Rubber (c) Elasto - 245/Paraffin Oil (d) Dimethyol Phenol Resin (e) Accinox TQ/TMQ (f) 1260/285 EPDM" Reliance has been placed in this regard on the lists submitted by Kanti Choudhury of direct and indirect materials used in the manufacture of ADV tyres, there is reference to these items and his statement that mostly common raw materials were used for both ADV and other type of tyres, there is no corroborative evidence disclosed in support of the contents of the list which is termed as a "tentative" list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Auditor, submitted as per his direction in the proceedings are to be relied upon. They establish that the subject materials were never used as input materials, either directly or indirectly, in or in relation to the manufacture of ADV tyres. The charts submitted by Birla Tyres, the contents whereof are with reference to the documents on record and the correctness of which has not been disputed on behalf of the Revenue, also evidences this. 6.4 We observe that the findings in the impugned order are based on, besides uncorroborated statements, derived figure of numbers, assumptions, presumptions and on unintelligible, theoretical calculations. It is a settled principle of law that in the absence of sufficient, positive and tangible evidence on record, findings based on inferences as in the impugned order are unsustainable [Oudh Sugar Mills Vs. UOI, 1978 (2) ELT J172 (SC)]. 6.5 Further, as held by the Hon'ble Supreme Court in Commissioner of Customs Vs. Auto Ignition Ltd., 2008 (226) ELT 14 (SC), the burden of proof that assessee had availed modvat/cenvat credit is that on the Revenue. In paras 5 to 9 of the judgment it has been observed as under: "5. The assessee challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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