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TMI Blog2024 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... nd imposing penalties on the all appellants. 1.1 The facts of the case are that an intelligence was gathered by the officers of the DGCEI, Vadodara that the raw materials/inputs viz., MS Plates, MS Angel, MS Channels, Rails, castings, electrical and mechanical goods etc. required to be used in or in relation to manufacture of the finished goods they were being stolen from the premises of the assessee since long back. One of the event of theft of raw materials viz. MS plates and Angels from the Godown/Stock yard which occurred on 02.10.2011 had been detected by local police and hence the management of the assesee had taken decision to conduct the physical stock taking of all raw materials to know the factual position of their raw material s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r co-noticees, allowed the appeals vide Final order No. 11370-11377/2024 dated 18.06.2024. 2. Shri Saurabh Dixit, learned counsel appearing on behalf of the appellant submits that all the four show cause notices which were decided by the common impugned order are on the identical issue and the same set of facts. Mistakenly, the present two appeals were left out to be taken up with other appealNos. 10331 of 2016 and 10332 of 2016 wherein this Tribunal has passed the order dated 18.06.2024. He request that the present two appeals may also be disposed of on the same line of this Tribunal's order dated 18.06.2024. 3. Shri R.K. Agarwal, learned (Superintendent) Authorised Representative appearing for the revenue reiterates the findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has been removed from their premises during the disputed period but it was noticed that there is absolutely no evidence with the department in this regard as to where and when the said raw material moved out of their factory premises. In the present matter department merely assumed that the said shortage was due to theft. Further we also find that there is no other corroborative evidence to establish that the shortage was on account of short-receipt of raw material. In that circumstances, we hold that the investigation was conducted by the Revenue is deficient and incomplete. In that circumstances, the charge of shortage of inputs stands disproved. 4.1 We also find that the recovery of Cenvat credit has been ordered under the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be accommodated in some other head which does not have a previous mention of the same entry. Further during the SAP ERP System was implemented, the appellant based on stock taking exercise to arrive at reasonably accurate factual position, reconciled Raw materials/WIP stocks and made necessary adjustment entry in SAP System, to show all such consumption of stock, that was actually made for production process over the period of time but the same was not properly captured/ recorded in books of account due to various reasons such as error in estimation/missed out in showing stock consumption etc. Therefore on the basis of said SAP entry only it cannot be assumed that the appellant has not used the disputed raw material qty. in production d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs. There is no evidence, that the shortage of inputs are due to diversion of inputs or theft of the inputs or clandestine clearances of inputs. When there is no finding that the inputs on which credit has been taken were clandestinely removed/ diverted what remains is improper accounting of the inputs. For improper accounting the cenvat credit cannot be demanded. In these circumstances, we are of the view that there is no evidence to sustain a finding that this is a case of irregular or incorrect taking or utilisation of credit. In such a situation, no cenvat demand is sustainable under Rule 14 of Cenvat Credit Rules, 2004. 4.4 We also find that the in the present matter it is also alleged by the department that Shri Hasmukbhai Pate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examination....... it is but proper that expert evidence shall be made available for cross-examination by the petitioners in the interest of compliance of principles of natural justice .... Any material to be used against the party has to be put to the aggrieved persons and the aggrieved persons should also have the freedom to cross-examine the witnesses who have given their expert opinion." 4.5 Statements recorded during investigation in the present matter, whose makers are not examination-in-chief before the adjudicating authority, would have to be eschewed from evidence, and it will not be permissible for Ld. Adjudicating Authority to rely on the said evidences. Therefore, we hold that none of the said statements were admissible evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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