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TMI Blog2023 (3) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... dit confirmed, at para 21.1 above, under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AA ibid. 21.3 I also impose a penalty of Rs. 61,79,285/- on the assessee, i.e. M/s. Tata Motors Ltd., Spare Parts Division, Chakan, Pune, under the provisions of Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC ibid. 22. I further give an option to the assessee under the provisions of Section LIAC of Central Excise Act, 1944, to pay 25% of the penalty amount as imposed in para 21.3 above, provided the assessee pays the entire amount of demand confirmed in para 21.1 above, alongwith interest payable thereon as ordered in para 21.2 above as well as the reduced 25% penalty imposed under Section 11AC ibid, within thirty days of the date of communication of this order. 23 The said order is issued without prejudice to any other action that may be taken against the assessee under the provisions of Central Excise Act, 19-44 and/or the rules made thereunder and/or any other law for the time being in force." 2.1 Appellant is availing Cenvat credit of central excise duty paid on inputs, capital goods and service tax paid on input services as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 We find that the issue is no longer res integra and has been settled in appellant's own case vide order reported at [2021 (11) TMI 830 - CESTAT MUMBAI]. Tribunal in the said decision has observed as follows:- "6. We find that in the facts and circumstances of the present case the shortages and excesses if any found are theoretical due to huge quantity of inputs handling. It is not a case of the Department that the appellant have ever removed any Cenvat inputs without payment of duty from their factory. Therefore, even though there is any shortage or excess, the input was available within the factory premises or consumed in the production. This issue has been considered by this Tribunal in the appellant's own case as follows: - (i) Tata Motors Ltd. Vs. Commissioner of Central Excise & Service Tax (LTU), Mumbai - 2019 (7) TMI 1797-CESTAT-Mumbai 3. We have heard learned counsel for the Appellant and learned Authorised Representative for the Revenue and perused the records of the case including the synopsis and the case laws cited by the respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative the appellants are liable to pay an amount equivalent to Cenvat Credit taken on inputs allegedly written off in terms of Rule 3(5B) ibid alongwith interest and penalty, as it categorically states that an amount equivalent to the Cenvat credit taken on input written off is payable by the assessee. He denied the contention of learned counsel that those parts which were not available during physical stock verification at its specified storage rack were subsequently found in another storage rack. 4. Rule 3(5B) ibid specifically provides that If the value of any input or capital goods before being put to use, on which CENVAT credit has been taken is written of fully or where any provision to write off fully has been made in the books of accounts, then the manufacturer or service provider, as the case may be, shall pay an amount equivalent to the CENVAT credit taken in respect of the said input or capital goods. A plain reading of the said rule makes it clear that it is applicable only in cases where goods are available in the factory and only a book entry has been made to write off the value of the said goods, which is not the allegation of the department against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in another matter of Appellants i.e. Appeal No. E/172/2009 in the matter of M/s. Tata Motors Ltd. Vs. CCE&ST, Jamshedpur, a coordinate Bench of the Tribunal vide Order dated 11.1.2019 = 2020-TIOL-1119-CESTAT-KOL decided the issue in favour of the appellants therein and held that the demand is not sustainable and there is no evidence on record that the inputs on which the Credit was taken, were not received in the factory or removed as such from the factory. 6. While following the decisions as cited above and in view of the facts of this case and also in view of the discussions made hereinabove, we are inclined to set aside the impugned order and accordingly the appeal filed by the appellants is allowed with consequential relief as per law, if any. (ii) Tata Motors Ltd. Vs. Commissioner of Central Excise - 2017 (345) ELT 653 (T) 5. I find that there is discrepancy in the inventory of input on which Cenvat credit being taken by the appellant but discrepancy is only to the extent of 0.08%. It cannot be ruled out that in a big industry, there is always possibility of minor variations in the stock, which occurred due to human error. Moreover, in the present case neither t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the shape of clandestine clearance of receipt of raw materials. The Tribunal in case of Maruti Udyog has observed as follows: - "7. The appellants have a huge and complex accounting problem. It is beyond manual tally. The appellants have put in place sophisticated computer based accounting systems to ensure accuracy and efficiency. The evidence on record does not indicate any diversion of inputs in contravention of rules relating to utilisation of inputs. The demand is merely based on the shortages detected during physical tallying, that too without taking into account the excesses noticed. Since there is no evidence, that the excesses are not the result of clandestine receipt of inputs, the same view is required to be taken in regard to shortages also, that the shortages are not the result of any clandestine or unauthorised utilisation of the inputs. The shortages thrown up also do not account for much. The appellants' Management as well as its auditor have accepted the differences between the physical stocks and the procurement as normal and something to be put up with. It is a very small (0.24%) fraction of the inputs received. It is well settled that Tax Authorities a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of excess. In so far as the value of shortages ranging from 0.01% to 0.21% whereas the excess ranging from 0.01% to 0.08% of the total procurement of parts. I find that the Tribunal in its decision in case of Maruti Udyog Ltd. (supra) has not relied on quantum of shortages are excess, but has relied solely on minuscule percentage of shortages found. The Hon'ble Supreme Court also has relied on the percentage of shortages found. However, as an additional argument, the Hon'ble Supreme Court has observed that the fact that shortages of input was less than the excess of input found demonstrate the bona fide. 5. In view of the above, I find that the issue is squarely covered by the decision of the Hon'ble Supreme Court in case of Maruti Suzuki India Ltd. (supra). The impugned order is set aside and appeal is accordingly allowed. 7. From facts of the three cases cited above, it can be seen that the same facts and circumstances existing in the present case, even though there is some theoretical variation in the inputs was found and on that ground the CENVAT Credit cannot be denied. 8. Following the aforesaid judgment of the Tribunal, we are of the view that th ..... 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