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TMI Blog2008 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the directors of the appellant company produced some invoices while stating that the inputs on which duty was not paid are actually the ones on which no credit has been taken in the first place. Revenue has conducted investigations and found invoices were fake and no goods were received under those invoices. Therefore the demand has been confirmed on the ground that these inputs were actually a part of the inputs on which Modvat credit has been taken and therefore the duty is required to be paid. Duty was also demanded under Rule 9(2) since the manufacturer could not be identified and rather no efforts have been made to identify. 2. In the remand order, the Tribunal had observed as under : 4......If the appellants have availed the credit, the inputs as well as the credit would find their places in the Modvat account. If the goods are subsequently removed, their removal would get reflected in Part I, whereas the Modvat credit entries would stand in Part II. As such, it is easy for the appellants as well as for the revenue to reconcile the entries and to arrive at correct findings. The Commissioner s finding that the inputs were received under the cover of fake invoices, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of M/s. Dunlop India Ltd. - 1985 (19) E.L.T. 22 (S.C.), Hon ble Allahabad High Court s decisions in the case of M/s. UP Lamination - 1985 (20) E.L.T. 243 (All.) and in case of M/s. ITC Limited - 2005 (184) E.L.T. 347 (All.) to support his contention that pre-deposit may be dispensed with where the appellants have been able to make prima facie case on merit, where the balance of convenience is in favour of the appellant and where the pre-deposit would cause undue hardship to the appellant. Therefore, he submits that unconditional stay may be granted. 3.4 Learned SDR on the other hand submitted that the Commissioner has not proceeded on the same basis as in first instance and he drew our attention to Para 25.1 of the impugned order wherein the Commissioner has observed that the appellants have failed to show where these inputs were accounted for if they were not accounted for in RG23 Part I. Further, the Commissioner observed that the appellants had not maintained Form IV register which was required to be maintained for raw materials and if the appellants contention that no credit has been taken on the input is correct, all they have to do is to produce Form IV register which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the hearing that he did not have the original file. 4.2 From the above discussion, it appears that the appellants came to know that the original file is missing on 8-2-08 during personal hearing and thereafter, requested for all documents since they knew fully well that the original file is not traceable and also probably realized that the department would never be able to give them these documents. It is also pertinent to note that they had not asked for documents during the process of earlier adjudication, as seen from their replies to the show cause notice and the OIO. Hence, presumption has to be that appellants have received all relied upon documents to facilitate their defence. However, these matters are required to be verified, confirmed and correct factual position has to be brought on record and for this purpose, we propose to give specific directions. Further, as of now, at the stage of stay, we have to go by learned advocate s contention that they could not defend their case properly since seized records were not made available since it is a very valid argument. 4.3 However, we notice that in respect of 3 inputs at least, the position is quite clear even without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, it is quite clear that second consignment was not received and the credit had been taken on the first consignment and therefore, the inputs under seizure were actually out of stock on which credit had been taken. Amount of duty involved in respect of these 3 inputs is about 19 lakhs. Atleast in respect of these 3 inputs, Revenue has made out a strong case against the appellant. No submissions have been made regarding financial status of the appellant. Learned advocate was specifically asked whether there is any financial difficulty. Learned advocate submitted that they have a very strong case on merit and he did not make any statement about the financial status. Further, as regards balance of convenience, it has to be noted that the case was registered in the year 1998 and it is 10 years now, and even by going by simple interest charged by the Government in respect of duty arrears, the amount payable by the appellant would be more than 200% of what was due. In the absence of a prima facie case and in the absence of financial difficulties, pre-deposit would not cause undue hardship and therefore balance of convenience is in favour of Revenue when we apply the principles la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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