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TMI Blog2013 (9) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the amount of duty of credit attributable to such inputs found short - needed only to be reversed and there cannot be any excess demand - This was a settled issue - Accordingly, upholding the confirmation of demand of duty on the inputs on which the MODVAT Credit was availed and found short - the correct quantum of duty liability needed to be worked out by the lower authorities based on the records - The lower authorities will work out the correct liability to duty of the credit availed on the inputs which were found short and recover the same from the assessee along with interest and also the penalties from the appellant-assessee under the provisions of Rule 57I and Rule 173Q of Central Excise Rules, 1944. Demand of Duty on the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent: Shri J.S. Negi, A.R. JUDGEMENT Per: M.V. Ravindran: All these 3 appeals are directed against Order-in-Original No. 01/MP/ DAMAN/2008, dt.17.01.2008. 2. Since all the appeals arise from same Order-in-Original, they are being disposed off by a common order. 3. This is a second round of litigation before the Tribunal and in first round of litigation, the Tribunal vide Final Order dt.1.12.2006, had remanded the matter to adjudicating authority by observing as under: 2. Learned counsel for the appellants submits that there is a duty demand of Rs.43,70,732/- and an equal amount of penalty. In addition, a penalty of Rs.10 lakhs has been imposed on Shri Prakash Bhansali, Managing Director of the company and further penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after granting waiver of pre-deposit. It is made clear that when the matter is remanded to the commissioner by the Tribunal for fresh adjudication, the commissioner is expected to record his findings on all the issues raised before him. " 4. Consequent to this observation and remand, the current impugned order is passed by adjudicating authority. 5. The relevant facts that arise for arise for consideration are that the appellant-assessee herein is a manufacturer of printed plastic films/rolls for packing of liquid milk, they availed MODVAT Credit on duty paid on inputs viz. LDPE, LLDPE. The printed plastic films/rolls are tailor-made as per the requirement of the dairies, who placed purchase orders and said finished goods bear the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess duty. According to him, if only CENVAT Credit is reversed, the demand of duty on this ground will be much less. As regards the demand of duty on finished goods which were clandestinely removed, he submits that the lower authorities have found out that there 41 invoices which were unaccounted in the statutory records. It is his submission that out of 41 invoices, 35 invoices were co-relatable with the clearances made by the appellant. It is his submission that the total quantity cleared on 35 invoices during the period in question i.e. 1995-96 and 1996-97 were cleared to mostly government owned dairies. He would draw our attention to the certificates issued by such dairies indicating the receipt of quantity of finished goods i.e. print ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fake invoice are in different names. He would also submit that these instances are enough to indicate that there was something amiss in the entire transaction. 8. We have considered the submissions at length by both sides and perused the records. 9. On the first issue, we find that the duty liability on the raw materials which were found short during the physical verification of the appellant s factory is liable to be discharged by the appellant as they are unable to give proper explanation for such shortage. To that extent, the adjudicating authority s findings on the point are correct, legal and does not suffer from any infirmity. However, we find strong force in the contentions raised by the ld. Counsel that if the inputs on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd fake invoices in the said annexureW read with other annexures to the Show Cause Notice. This leads us to appreciation of the evidences on record. On perusal of the records, we find that the appellant had produced certificate from Baroda District Co-operative Milk Producers Union Ltd., Mahand Dairy, and other government owned dairies, to whom they make supplies to justify their plea that there was no clandestine removal of the goods during the entire period. In order to appreciate the correct factual matrix, we reproduce one of the certificate issued by Baroda District Co-operative Milk Producers Union Ltd. 11. It can be seen from the above reproduced certificate issued by the appellant s purchaser, they have clearly indicated the exact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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