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TMI Blog2024 (6) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... 1- 42-CE/APPL/KNP/ADG-NACIN/2017-18 dated 22/02/2018 passed by Additional Director General (ZTI) Customs, Indirect Taxes & Narcotics, Kanpur. By the impugned order, Commissioner (Appeals) has held as follows:- "ORDER In view of the above, the Order-in-Original No.04/CE/ADC/2016 dated 06.01.2016 passed by the Additional Commissioner, Central Excise Kanpur is upheld. The appeal No.105/CE/2016 and 106-CE/2016 both dated 21.03.2016, filed by M/s Jonson Matthey Chemicals India (P) Ltd., Plot No.2A, Site-II B Panki, Industrial Estate, Kanpur (earlier M/s Akzo Nobel India Ltd.) and Shri Mahendra Singh Dhatarwal, Assistant Manager (Commercial) of M/s Jonson Matthey Chemical India (P) Ltd. are rejected." 2.1 The present proceedings arise out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act, 1944 for the aforesaid contraventions; IV. Penalty should not be imposed upon them Under Rule 27 of Central Excise Rule, 2002 for the aforesaid contraventions." 2.3 This show cause notice has been adjudicated as per Order- in-Original No.04/CE/ADC/2016 dated 06.01.2016 by holding as follows:- ORDER 1. I disallow the cenvat credit amounting to Rs 34,52,475/- (CENVAT Rs.33,51,918/- + ED. Cess Rs.67,038/- + H. ED. Cess Rs. 33,519/-) [Rupees thirty four lakhs fifty two thousand four hundred seventy five only) wrongly availed by M/s Akzo Nobel India Ltd., Plot No.2A, Site-II B. Panki Industrial Estate, Kanpur. I confirm and determine the demand of aforesaid amount against aforesaid party in terms of Section 11A (10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Representative appearing for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 Show cause notice dated 30.01.2015 was adjudicated by the Commissioner, Central Excise & Service Tax, Kanpur vide Order-in-Original No.KNP-EXCUS-000-COM-018-15-16 dated 29.10.2015 by holding as follows:- " ORDER 1. I deny the CENVAT credit amounting to Rs.4,48,81,193/- [Rs.5,18,656/- (amount of CENVAT credit taken on the manipulated duty paying documents) + Rs.4,43,62,537/- (amount of CENVAT credit of service tax involved on input services)] (Rupees Four Crore Forty Eight Lakhs Eighty One Thousand One Hundred Ninety Three only) wrongly availed and utilized by M/s Akzo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial) of M/s Akzo Nobel India Itd., Plot No.2A, Site-IIB, Panki Industrial Estate, Kanpur under Rule 15(1) of the CENVAT Credit Rules, 2004, for the reasons discussed here-in- above. 6. I do not impose any penalty upon Shri Rajeev Malviya, the ex-employee of M/s Akzo Nobel India ltd., Plot No.2A, Site-IIB, Panki Industrial Estate, Kanpur for the reasons discussed in foregoing paras." 4.3 The order was challenged by the appellant in appeal before this Tribunal. Tribunal has vide Final Order No.A/72638- 72639/2018 dated 16.11.2018 set aside the order of Commissioner by holding as follows:- "2. It is seen that based upon the audit reports, a case was made out against the assessee proposing denial of cenvat credit on the allegation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable, both on facts and in law. Nothing is brought on record by the revenue to prove that the assessee did not receive duty paid inputs and/or it did not utilise the same for manufacture of finished excisable goods cleared on payment of duty. The existence of commercial arrangement between the appellant and JMCIPL is only to carry out the commercial activities for the purpose of business of the company in the light of the need for financing control, sales, marketing and allied activities to run the business and in no way, does it disentitle the manufacturer of excisable goods i.e. ICI India Limited (presently Akzo Nobel Ltd.) to Cenvat Credit of the duty paid on inputs and capital goods. Further, the duty paying documents bear the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice cannot be confirmed again. The decision of the Supreme Court in Dhakeswari Cotton Mills Ltd. Vs. CIT AIR 1955 SC 65 clearly supports the assessee as the Commissioner did not provide to the assessee the copy of the verification report of the Assistant Commissioner, which is claimed by it to be in support of its entitlement to Cenvat Credit after thorough verification, and there is no reason why the Commissioner should disregard the same and repeat what was alleged in the show cause notice while passing the impugned order, nor was the assessee given any further opportunity of fair hearing after the report of the Assistant Commissioner was received. The demand is confirmed mechanically based on the show cause notice and not on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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