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TMI Blog2010 (1) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the directions as under :- 12. In the circumstances, we are of the opinion that the Tribunal without considering the facts of the case properly and without giving any importance to the documents produced by the parties has come to this conclusion. In the circumstances, we are of the opinion that the order of the Tribunal has to be set aside answering the question framed in favour of the appellant herein. 13. The appeal is allowed. The order of the Tribunal dated 21-4-2005 is hereby set aside and the matter is remanded to the Tribunal for fresh consideration in accordance with law. 3. The demand of duty has arisen in this case on the ground that there is wrong availment of ineligible Modvat credit, on the following grounds :- (1) Modvat credit was disallowed by the adjudicating authority on the following categories: - (a) Wrong availment of credit with reference to the application of different grades during the period from 29-4-98 to 20-11-99 - Rs. 4,24,022.00 (b) Wrong availment of Modvat credit from 15-6-2000 to 19-6-2000 and on 28-5-2000 on account of discrepancy between HD 53 EA 010 PA and without PA and E/45A/033 0479050 grades Para 7 of Annexure to Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellants had intentionally not maintained records to show the receipt and consumption of the raw materials. It is the submission that it is for the appellant to establish that they received imported raw materials and they were consumed properly and recorded in the book of accounts. It was submitted that the Balance Sheets of the appellant indicate receipt of imported materials as nil and it would itself show that there were no receipt of granules which were imported by the appellants. 7. In rejoinder, the learned Counsel drew our attention to the statutory records maintained by them i.e., RG 23A Part I II. He also drew our attention to various Bills of Entry on credit of countervailing duty was availed. He submits that these documents were with the Revenue and it is undisputed fact that there was no objection or clarification sought by the Revenue from the appellant. 8. We have carefully considered the submissions made by both sides and perused the records. 9. The issue involved in this case is in respect of eligibility of Modvat credit on the HDPE granules, raw materials consumed by the appellant in the manufacture of final products. 10. The first allegation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries, which are exempted from payment of duty. In any case, they would have got the Modvat credit on all types of granules. Therefore, we do not find any motive which could be attributed to the appellants for using the granules of a grade different from the one specified by the DOT. However, the Department of Telecommunication has not rejected any of the consignments on the ground that the pipes were not made as per the specification of the DOT and which was inspected by the inspectors of D.G.S. D. We also find from the letter of the manufacturers as well as from the letter dated 15-2-2002 of the Central Institute of Plastics Engineering and Technology given to the Plastics concern, Kolkata, wherein it has been stated by the Institute of Plastics that it is possible to produce the HDPE material for pipe purpose conforming to DOT specification (G/CDS-05/2001 Dec, 94) by mixing/blending of granules of the other grades. The whole case is based on assumption and conjectures and there is no evidence that the HDPE granules were either sold in the market as such or they had purchased some other granules which were allegedly used in the appellant company. As regards the clarification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account. Even in their latest letter dated 5-3-2003, the said Institute has confirmed the ratio of blending/mixing of different grades of virgin HDPE material depend on parameters like grade, MFI, density, machine specification, etc. As far as blending/mixing of following grades of HDPE/LDPE granules for pipes as per DOT specification, the said Institute has opined that the same can be commented without documentary evidence or without trial manufacture. This fact clearly shows that without actual trial of manufacture of pipes, it cannot be said that the raw materials used by the appellants have in fact, not been used by them. 12. We have also observed in our earlier order that there is no evidence on record to show that the huge quantity of HDPE granules of various grades admittedly received by the appellants has been disposed of by them and the appellants had procured the other grades of granules. Shri Roychowdhury, ld. Sr. Advocate appearing for the Revenue has also not been able to point out to any such evidences of disposal of the procured granules or the purchase of another grades of granules. He has not been able to answer our queries as to how the appellants were ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced before him. We find that, today, learned Counsel produces the copies of RG 23A Part I II before us. On perusal of RG 23A Part I, we find that these recording of receipt of imported raw materials in the factory premises of the appellant. On perusal of the said RG 23A Part I II, we find that the said material has been issued for consumption in the, manufacture of final products. The copies of RG 23A Part I II are submitted, as statutory records to the lower authorities along with statutory monthly returns. These records have to be considered by the authorities, as records, maintained by the appellant for the purpose of receipt and consumption of imported raw materials. On perusal of the Order-in-Original at Para 48, we find that the adjudicating authority has only relied upon the entries made in the Balance Sheets as regards the consumption of raw materials, while she has not considered the factual matrix of maintenance of RG 23 Part I II by the appellant. There are no findings in the said paragraph on this point. In our view, when there is availability of statutory records, there is no requirement for insisting and maintenance of private records, for the purpose of esta ..... 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