TMI Blog2005 (2) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ing transit, a part of the goods were damaged. The main charge of the Revenue is that knowing that the goods were damaged, they were also issued for production with an intention to avail the Modvat credit illegally. The Revenue initiated proceedings by issue of Show Cause Notice dated 27-5-97. The proceedings culminated in an order dated 30-3-99 by the Commissioner. When the appellants appealed to the Tribunal against the Commissioner's order, the Tribunal in Final Order No. 914/2000, dated 17-7-2000 remanded the matter to the Original Authority with a direction to give a finding with regard to the fact that the authorities had knowledge of the damaged items in view of the End Use Certificate issued based on Stores Receipt Advice. In the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues. She has gone into the question as to whether material transaction receipts which were produced to get the end-use certificates showed the entire quantity including the damaged portion as consumed. Based on this she has arrived at the conclusion that the end-use certificates were obtained by mis-leading the department with an intention to avail irregular Modvat credit on the total quantity of inputs. (ii) The adjudicating authority has arbitrarily come to the conclusion that the end-use certificates were issued without verifying all the records including the Stores Receipt Advice and the appellants had obtained the certificates by misleading the Range Officer. Under Section 114 of the Indian Evidence Act, there is a presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count the contention of the appellants that duty was not claimed with the Insurance Company towards the damaged goods. (vi) The extended period is not invokable and unwarranted as the Department was always aware of the procedure followed by the appellants. (vii) The remand order imposes higher penalty under Rule 173Q as against the penalty of Rs. 1,00,000/- originally imposed by the Commissioner in the Order dated 30-3-99. This is clearly without jurisdiction and without the authority of law. It is well-settled law that the assessee cannot be put in a worst position in appeal and penalty cannot be enhanced in remand proceedings as the Department did not file any appeal against the order dated 30-3-99 for enhancement of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of picture tubes. The Hon'ble Supreme Court held that the word 'for use' is to be construed to mean intended for use'. 4. The learned SDR argued that there is no question of giving Modvat credit to the goods which were not put in use. He said that the case law relied on by the appellants is distinguishable as the same is in respect of an exemption notification and not with respect to the Modvat credit. 5. We have gone through the rival contentions. In this case, the impugned goods were imported. The jurisdictional authorities had already given end-use certificate based on the Stores Receipt Advise maintained by the appellants. This indicates that the Department was well aware of the procedure followed by the appellants. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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