2013 (8) TMI 305

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..... ork, the applicant was out of town and thus delay occurred. Considering the facts and circumstances of the case, the delay of 3 days in filing the appeals is condoned and the COD applications are allowed. 2. All the stay applications are arising out of a common order and therefore all are taken up together. M/s. Praveen Foundry Pvt. Ltd. (Applicant No.1 herein) is a manufacture of castings of automobiles. They purchased MS scrap and SS scrap from registered dealers and used in the manufacture of castings. Original authority confirmed the demand of duty of Rs.25,48,085/-and imposed penalty of equal amount along with interest on the ground that they received MS scrap but the duty paying documents were showing the goods as MS channels and ang .....

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..... which proves that the first stage dealers supplied M.S. Scrap and not M.S. Rounds etc. Thereafter, a corrigendum to SCN was issued and other 6 dealers were also issued with SCN. Hence, he submits that demand of duty on the basis of supplier of materials is not sustainable. According to him, initial SCN demand is related to about Rs.7 lakhs. It is also submitted that during cross-examination of the dealers, it was deposed that they had supplied duty paid scrap only. Ld. advocate appearing on behalf of registered dealers (Applicant Nos.3-11) submits that dealers had duly recorded material in their records and therefore no penalty can be imposed on them. He submits that in identical situation, the Tribunal in the case of Sri Meenakshi Steel & .....

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..... d, Applicant No.2, Shri A. Radhakrishnan, M.D. of Applicant No.1 company in his statement dated 24.9.2008 categorically stated the details regarding process of receiving M.S. scrap, Lab test, storage and use in the manufacturing of finished goods. In the context of the present case, he stated that they received virgin materials and treated them as scrap. Prima facie, it is difficult to accept that a prudent business would use virgin material as scrap and such statement is contrary to the statements of dealers and this virgin materials usually cannot be used in melting scrap in the Furnace. We find that Rule 9 (5) of Cenvat Credit Rules, 2004 provides that the burden of proof regarding admissibility of the Cenvat credit shall lie upon the ma .....

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