TMI Blog2023 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri N. K. Chowdhury , Advocate for the Appellant Shri S. Mukhopadhyay , Authorised Representative for the Respondent ORDER Per Ashok Jindal : Both sides are in appeals against the same impugned order. 2. The facts of the case are that on 30.01.2008, the Central Excise Anti-evasion Team visited the registered premises of the appellant, admeasuring 300 sq.ft.,which was used by M/S BDS Control Systems for manufacturing their own products, in terms of a contract with the appellant and no activity, nor any raw materials or finished products of the appellant assessee in the said premises was sighted. The statements of Shri Dipak Das, supervisor of M/S BDS Control Systems and Shri Dilip Dey, partner of M/S BDS Control Systems revealed that said M/S BDS Control Systems was engaged in the manufacture production in the said premises since May, 2007 and the appellant assessee had no activity therein since then. 2.1 Further, Shri Jayanta Saha is the proprietor of M/s Saha Industries. The appellant assessee was engaged in the manufacture of rolling mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the appellant assessee and the Revenue are before us. 3. The ld.Counsel for the appellant assessee submitted that the appellant assessee has procured the goods from the manufacturer or supplier and manufactured the finished goods and cleared the same on payment of duty. It is his contention that the appellant assessee has paid the duty more than the amount of credit taken by them. The input supplier and the recipient of the finished goods have not made parties to the proceedings. 3.1 He further submits that the report submitted from different Commissionerates, established the fact that the inputs were received by the appellant assessee and the finished goods were cleared on payment of duty. The payments were made by Account Payee Cheques. The appellant assessee made payments of inward transportation of the goods and outward transportation charges of the goods were paid by the recipient of the goods. He further submits that the infrastructure was sufficient for the appellant assessee to manufacture of goods. The Chartered Engineer s Certificate does not say about the impossibility of manufacturing, but assumed only that such huge quantity of manufacturing is not possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and even if there are any irregularities, the said payment of duty is amounting to reversal of the cenvat credit. 4. On the other hand, the ld.A.R. for the Revenue supported the impugned order. 5. Heard both the parties and considered the submissions. 6. Ongoing through the facts placed before us and the arguments advanced by both sides and the relied upon case laws relied by both sides, we find that in this case, it is fact on record that the premises of the appellant assessee is only 300 sq.ft., which was rented out entirety to M/S BDS Control Systems on monthly rent of Rs.300/ for manufacture of the latter's products with effect from 2.5.2007 onward, the claim of the appellant assessee that there was simultaneous production in the said premises by the appellant assessee was not supported either by the statements of Shri Dilip Dey, Partner and Shri Dipak Das, Supervisor of M/s BDS Control Systems. 6.1 On 30.01.2008, no employees and Labours were found during visit of the Revenue Officers. These facts are not in dispute. Neither any stock of raw material nor any finished goods or machineries was there at site. 6.2 Shri Jayanta Saha has stated that owing to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sold waste and scraps of iron and steel to the tune of 2307.625 MT, valued at Rs.2,61,41,630 (ex-duty) whereas their audited balance sheet for the same period showed the turnover from the sale of waste scraps as Rs.56,100/- only. 6.7 As per the statement of Shri Saha, the appellant assessee brought C.R.Coils to factory but had no cutting facility nor facility to handle equipment like long joist. 6.8 Further, Purchase orders from different parties produced by Shri Saha showed that transport charges were on account of the appellant assessee, whereas the audited balance sheet indicated that the appellant assessee on account of transportation incurred no expenditure. Shri Saha also informed the Revenue that he did not make any payment toward outward freight. The appellant assessee s customers, be it their suppliers or buyers, denied having incurred any expenditure toward transportation of goods to or from the appellant assessee. Therefore, the question arose, who paid the transportation charges ? 6.9 On an enquiry from the transporter, it was found that M/s Essel Transport was non-existent at the given address. Likewise (i) Shree Shyam Roadways, (ii) Rishabh Carriers Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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