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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 ..... concern for repacking in different denomination packs as well as cleared. The goods so cleared are subject to Central excise duty under MRP scheme under section 4A of the Central Excise Act, 1944. 2. Revenue alleged that both the goods having been packed in containers and input credit having been enjoyed on the packing materials and others, excessive loss of excisable goods arising in the course of repacking, warrants recovery the proportionate input credit and that is recoverable. 3. Countering the allegations, appellant submitted that the very nature of the goods it received during aforesaid period for repacking is subject to moisture for which the quantity loss is bound to occur. Similarly, while repacking, handling loss is also bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of repacking. But that was not deliberate to cause any evasion. Revenue did not find out whether such an increase was due to any diversion of the goods meant of repacking 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 Rs. 14,29,131/- on scouring powder and Rs. 5,91,347/- on detergent powder is unsustainable. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trend of loss. But Revenue has not found any good reason why such loss had occurred year after year. No allegation is based on evidence. Therefore, the possibility 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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