TMI Blog2009 (3) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... a clear evidence that its RG-23A Part-I record is not challenged by Revenue – Further to deny the right of credit, burden of proof lies on Revenue with cogent evidence led to show that the inputs were only gathered for mere paper credit but have not undergone consumption – further it is held that without element of law, there cannot be levy of peanlty - E/3641-3643/2004-EX - 272-274/2009-EX(PB), - Dated:- 31-3-2009 - S/Shri D.N. Panda, Member (J) and Rakesh Kumar, Member (T) REPRESENTED BY : Shri B.L. Narasimhan, Advocate, for the Appellant. Shri A.K. Rastogi, DR, for the Respondent. [Order per : D.N. Panda, Member (J)]. - Ld. Counsel Shri Narasimhan submits that the proceeding was initiated after making a comparison of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Revenue has not at all conducted any physical verification of stock but on mere suspicion and assumption proceeding was initiated. Firstly, Revenue alleges that physical balance of inputs at the year end showed in the balance sheet as on 31-3-97, 31-3-98 and 31-3-99 were higher than the figure appearing in RG-23A Part-I on these relevant dates and to cover up the shortage of inputs, the appellant made entries showing issues on the next day of balance sheet (G-23A Part-I of a quantity equal to shortage without actually issuing the inputs for use in manufacture. He submits that when such allegation was made, that calls for an exercise precisely depicting in a chart how the shortage has occurred. But that was not done by Revenue. The Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any discrepancy of cognizable in nature the balance sheet figures are not decisive to make allegation against the appellant. The appellant has already explained to the adjudicating authority that reconciliation statement of stock based on the consumption norms explains the issue. He further submits that when the department fully relies on the balance sheet, the department has also to rely on the auditor's report and Piecemeal evidence shall vitiate the proceeding. 4. With all the aforesaid submissions, learned Counsel prays that the demand is liable to be annulled being made presumptively without any basis and also without any examination of evidence available on record. So far as penalty is concerned, his pleading is that there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the authorities have examined the case of 2001 that is appearing at page-52 of the appeal folder. The conduct of the appellant was under scrutiny. That speaks against the appellant. He further submits that Revenue has taken all the figures of the RG-23A Part-I register and because it has found that on the first part of the financial year and most particularly at beginning there was big adjustments done conduct of appellant was questioned. The appellant has resorted to such practice. That is subject matter of the issue framed at page-61 of the appeal folder dealing with discussions and findings. His further argument is that when the appellants adjusted on one day that itself has left doubt and nothing satisfactory explanation being fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate discharge of duty liability. Therefore to deny the right, burden of proof lies on Revenue with cogent evidence led to show that the inputs were only gathered for mere paper credit but have not undergone consumption. We are unable to notice any suppression of purchase nor clandestine manufacture or removal. Revenue is required to prove that the goods manufactured is even possible with less quantity of inputs. But done in the case presently on record. 7. To resolve the dispute of both the sides, apart from our observation aforesaid it would be fair on the part of adjudicating authority to first find out what is the quantum of discrepancy as per balance sheet and how such discrepancy has basis for an allegation. Once he finds that the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the matter is proposed to be remitted back. We make it clear that when the element of law is not present there cannot be levy of any penalty. The litigants should get appropriate opportunity when the matter is looked into afresh without being guided by earlier findings in the order of adjudication. The authority should dispose of the matter as early as possible since demand raised by impugned order was running into crores of rupees. The appellant shall appear before the ld. adjudicating authority within 60 days of receipt of this order, so that the authority shall fix the date of hearing. The authority should not hesitate to make a proper exercise when the pleading of the appellant even today is that the figures are reconcilable. Fair op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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