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TMI Blog2016 (9) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the Commissioner (Appeals) for the reason that authority had not recorded any reasons for his conclusion that 'the impugned order is upheld and the appeal is dismissed. In the impugned order resulting out of such de-novo proceedings, it is seen that the Commissioner (Appeals), out of the nineteen paras of his order, devotes a mere three paras to analyze and arrive at the conclusion reached, which in itself throws doubt on whether he has sufficiently applied his mind in the matter. It is further seen that the raison detre for setting aside of the order of original authority is the finding of the Commissioner (Appeals) that he "is inclined to agree with the appellants" with regard to the various apparent discrepancies pointed out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s availing the Cenvat Credit facility under chapter VAA of Central Excise Rules, 1944 and Cenvat Credit rules, 2001 and utilising the duty paid on the inputs namely scrap towards payment of duty on the final products. Acting on the information that assessee has irregularly availed of Cenvat credit on the Bills of Entry without receiving the imported scrap into their factory and fabricating the documents fraudulently, department the officers visited the above unit on 20-05-2003. During the verification of records, it was noticed that the assessees have wrongly availed an amount of Cenvat credit relating to additional Customs duty paid on scrap imported vide 20 Bills of Entry. The assessee failed to produce the records and documents pertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 21-05-2010, dismissed the appeals. The assessee approached the Tribunal for the second time and the latter, vide Final Order No.221 222/2011 dated 08-03-2011, remanded the matter back to the Commissioner (Appeals) with directions. 4. In this second round of de-novo proceedings, the Commissioner (Appeals) vide Order 23/2011 (V-ll) CE(Denovo) dated 06-07-2011 found inadequacies in the findings of the original adjudicating authority and set aside the Order-in-Original with consequential relief. 5. Hence this appeal by department/revenue, on the following main grounds. 5.1 The Commissioner observed that the evidence recorded during the course of cross-examination of M. Rajendra Prasad, Proprietor of Andhra Pradesh Tamil Nadu Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling Cenvat on fictitious documents. Hence the maintenance of records and filing of returns would not come to help when the fraudulent activities of the assessees were uncovered by department by way of investigation. 5.4 The contention that the Original adjudicating authority has ignored the letter from the DCTO Integrated check Post, Bheemunivanipalem dated 20-04-2006, is erroneous. The reliance of Commissioner(Appeals) on the letter dated 20-04-2006 issued by the DCTO, Integrated check-post, Bheemunivaripalem, is contextually incorrect. 5.5 Regarding all the other contentions, Shri Kamal Kishore Ojha, the agent of the assessee, stated that according to the plan devised, Shri Ramesh has imported scrap approximately 4500 MTs in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the assessee contended that the statements of the above persons should not be relied, it need to be noted that the statements of all these persons were recorded before DRI during the period from November 2002 to March 2003 and they have retracted the statements during the cross examination held in the months of December 2005 and January 2006 ie. after a lapse of nearly three years. Since it is proved that the assessee has fabricated the documents and taken credit on bogus and fictitious documents, it is a fit case to invoke proviso to Section 11A(1) of the Central Excise Act, 1944. Accordingly, the demand is liable for confirmation on limitation also. 5.7 Department has not made a case merely on presumptions and assumptions. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulting out of such de-novo proceedings, it is seen that the Commissioner (Appeals), out of the nineteen paras of his order, devotes a mere three paras to analyze and arrive at the conclusion reached, which in itself throws doubt on whether he has sufficiently applied his mind in the matter. 10. It is further seen that the raison detre for setting aside of the order of original authority is the finding of the Commissioner (Appeals) that he is inclined to agree with the appellants with regard to the various apparent discrepancies pointed out by the latter. I do not thus find any independent application of mind by the Commissioner (Appeals). He has not weighed or analyzed the correctness of the contentions of the assessee, but only di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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