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TMI Blog2010 (6) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... l along with stay application. 2. Today the stay application was listed for disposal but the learned DR took the preliminary objection that as per Section 35B(1) proviso (a) this appeal is not maintainable before this Tribunal. Accordingly, the preliminary objection has taken up for decision. 3. A show-cause notice was issued to the appellant for contravention of the provisions of Rule 10 of the Central Excise Rules, 2002 and Rules 3 and 9(5) of the Cenvat Credit Rules, 2004 inasmuch as they have failed to maintain proper accounts of the finished products and of the Cenvat inputs resulting in the short payment and in availing of inadmissible Cenvat credit in respect of the quantity of the finished products and Cenvat inputs respectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in storage, whether in a factory or in a warehouse; [emphasis supplied] (b) …; (c) …; The clause (a) of the first proviso is applicable to this case which covers the loss of goods. There is no dispute regarding the loss, the issue in this case is admissibility to Cenvat credit on differences between physical and book stock of inputs/duty on finished goods found short. This proviso covers the cases of loss of goods (a) where such loss occurs in transit from a factory to a warehouse or another factory, or from one warehouse to another, or (b) during the course of processing of the goods in a warehouse, or (c) in storage, whether in a factory or in a warehouse. From the above, it is clear that there should be loss of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome reasons including process loss which is not covered in clause (a) of first proviso to section 35B(1) of the Central Excise Act, 1944. The ratio of the case laws discussed above also confirms that the issue involved in this case is maintainable before this Tribunal. On identical issue for the earlier periods of the appellant itself this Tribunal has decided the issue after hearing both the parties. I do not find any force in the argument of the learned DR that the appeal is not maintainable before this Tribunal. Accordingly, I hold that this appeal is maintainable before this Tribunal, the preliminary objection is disposed off accordingly. The Registry is directed to list the matter for disposal of the stay application. (Pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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