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TMI Blog2016 (4) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.01.2009 the Adjudicating Authority disallowed CENVAT Credit of Rs. 13,29,917/- to the Appellant under Rule 12 of CENVAT Credit Rules, 2002 and Rule 14 of CENVAT Credit Rules, 2004 and also imposed equivalent penalty under Section 11AC of the Central Excise Act, 1944 along with interest. 2. Miss S.Chatterjee (Advocate) appearing on behalf of the Appellant argued that CENVAT Credit has been denied to the Appellant with respect to inputs found short in the Appellant's stock as per Statutory Audit undertaken by the Appellant. It is the case of the Appellant that the said shortages were written off and accordingly no demand of duty can be made because the period of demand is 2002-03 to 2005-06 and the provisions for reversal of CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were lying anywhere in the factory as unfit inputs etc..That all the case laws relied upon by the Advocate are for situations where the inputs were available in the factory, but were not usable. The ld.AR relied upon the case law of ASCO (India) Ltd. v. CEGAT, Chennai [2009 (238) ELT 397(Mad.)]. It was his case that in this case Hon'ble Madras High Court has held that when there are shortages then CENVAT Credit is required to be reversed. 5. The Ld.Advocate appearing on behalf of the Appellant as a counter argued that even if on merit the issue is decided against them, then also no demand can be confirmed as extended period of five years is not applicable. 6. Heard both sides and perused the case records. 7. The issue involved in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, cited by learned counsel and also other submissions which were made, we find that this demand is not sustainable and accordingly, is set aside." 8. It is observed that there was no removal of inputs in the case before CESTAT Bangalore. Similarly in all other cases relied upon by the Appellant, the inputs were lying in the factory which were written off because of unsuitability of their use in the manufacturing process. However, in the present case the shortages written off by the Appellant were never found available in the factory premises of the Appellant. Therefore the ratio of the case laws relied upon by the Appellant is not applicable. On the contrary Honble Madras High Court in the case of ASCO (India) Ltd. v. CEGAT, Chennai (s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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