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TMI Blog2016 (7) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... idence on record to show that the goods subjected to MRP has been cleared clandestinely. That rules out the allegation against the appellant and there shall be no presumption of any diversification of the output repacked in absence of any cogent evidence and the contrary. In absence of any credible evidence to show that the goods came from the sister concern of the appellant has gone elsewhere without suffering duty on MRP basis, the appellant should not suffer any arbitrary percentage of disallowance of CENVAT credit apparent from show cause notice Mere statistical figure shall not serve purpose by any scientific calculation. The calculation should demonstrate that there was breach of law supported by evidence. That is not the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is bound to occur. Similarly, while repacking, handling loss is also bound to occur. Further, due to old age of the machines used for repacking, loss is also bound to occur. There was a tolerable extent of loss faced by appellant. Revenue noticed that both the commodities have shown their behavior in the following manner as to the loss incurred:- An analysis of the shortage of raw materials over the period of 5 years indicated a pattern that is not justifiable by any standard. The loss of duty availed inputs in percentage terms for the period from 2007 - 08 to 2011 - 12, is shown as under:- Year % of loss SCOURING POWDER 2007 - 08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cking or any of the input on which CENVAT credit is taken is diverted. The whole allegation having been made on suspicion and surmise, without witnessing any trial run by Revenue nor finding diversion of goods, it is not possible for Revenue to allege inadmissibility of CENVAT credit to the extent mentioned in page 77 of the appeal folder. Revenue has also not brought out any behaviour of the appellant causing prejudice to it in the course of repacking. Therefore, levy of duty of ₹ 14,29,131/- on scouring powder and ₹ 5,91,347/- on detergent powder is unsustainable. So also no interest or penalty imposable. 6. Revenue on the other hand supporting the adjudication says that when the appellant went on showing the increased loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility of occurrence of loss as argued by learned counsel may not be ruled out since Revenue failed to discharge its burden of proof bringing out any cogent evidence to demonstrate that these losses were caused deliberately to avail CENVAT credit unreasonable or unlawfully. No doubt Revenue need not prove its case with mathematical precision, but it does not get the liberty to presume that the goods have been cleared clandestinely, in absence of any evidence. There is no iota of evidence in this regard. It is high time for Revenue atleast to witness a trial run in periodical intervals to ascertain the reality and also to ascertain whether any of the goods meant for repacking have been diverted without paying duty when the goods are subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 11. Law is also well settled that to make allegation there should be cogent and credible evidence. Mere statistical figure shall not serve purpose by any scientific calculation. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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