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TMI Blog2017 (5) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... present case is due to non-accountal of these raw materials in the statutory records. If these raw materials are not accounted in the records, the question of availing credit on them does not arise. Accordingly, for non-accounted raw material Rule 15 of Cenvat Credit Rules, 2004 has no application. Raw materials found short in the premises - demand of ₹ 4,84,586/- - Held that: - it is noticed that there is no discussion or finding in the impugned order dated 15/04/2010 by the Commissioner (Appeals). This issue has to be re-examined by the Commissioner (Appeals) for a decision - matter on remand. Appeal allowed in part - part matter on remand - appeal disposed off. - Excise Appeals No. 2493 of 2009 and 2044-2047 of 2010 (SM) - Final Order No. 53201-53205/2017 - Dated:- 9-5-2017 - Hon ble Shri B. Ravichandran, Member (Technical) Shri Naveen Mullick, Advocate for the appellants S/Shri K. Poddar and G.R. Singh, Authorized Representative (DRs) for the Respondent ORDER Per. B. Ravichandran All the appeals are inter-linked with the core issue of Cenvat credit availed by two main appellants namely, M/s Pathick Engineering Works and M/s Tiya Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps manufactured and sold to Indian Railways. However, these are used in connection with preparation for the manufacture of rail clips, by using them in trial or for setting up of the deformed dyes. All these items are used in the process of manufacture though not finding place in the final product. After usage these items becomes scrap and were cleared on payment of duty, after due accounting. 4. The learned Counsel submitted that the Original Authority ordered the confiscation of raw material SS bars only on the ground that these are found in excess and are not accounted for in the books of M/s Pathick Engineering Works. Rule 15 of Cenvat Credit Rules, 2004 was invoked for confiscation. He submitted that all these raw materials were in fact entered into the account and were immediately shown issued to the shop floor and thus there is no closing balance on date of visit by the officers. The Department has never adduced any evidence regarding misutilization of these items or unauthorized clearance of all these items by the appellant. 5. On the demand of ₹ 4,84,586/- towards raw materials found short in the premises of M/s Tiya Industries, the learned Counsel submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers/suppliers, wherefrom the manufacturers of ERCs could get required raw material and use in the manufacture of Elastic Rail Clips. Investigations revealed that the appellants have used a sizeable amount of raw material other than the prescribed one from various dealers of Steel and have utilized such Cenvat credit therefrom in payment of CE duty on ERCs. For this unprescribed raw materials for trial/die setting purposes for economic reasons and thereafter the same was placed as waste and scrap and was thereafter cleared on payment of duty with due accountal in their Excise records. In this context, I find that so far argument and stand maintained by the appellant is concerned, the same could be correct on certain footings and on account of non-verification of clearances made of prescribed or un-prescribed raw materials or for legal purposes but for similar reasons for practice and manner followed by similar other manufacturers could also be the same as they are also the parties who participate in similar tenders with Railways and are engaged in the manufacture of Elastic Railway Clips like the appellants in the present case and therefore, the appellants have completely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w material, SS Bars, I find that the proceeding have been initiated and concluded invoking provisions of Rule 15 of Cenvat Credit Rules, 2004. The said rule reads as below :- [RULE 15. Confiscation and penalty. - (1) If any person, takes or utilises CENVAT credit in respect of input or capital goods or input services, wrongly or in contravention of any of the provisions of these rules, then, all such goods shall be liable to confiscation and such person, shall be liable to a penalty [in term of clause (a) or clause (b) of sub-section (1) of section 11AC of the Excise Act or sub-section (1) of section 76 of the Finance Act (32 of 1994), as the case may be]. (2) In a case, where the CENVAT credit in respect of input or capital goods or input services has been taken or utilised wrongly by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Excise Act, or of the rules made thereunder with intent to evade payment of duty, then, the manufacturer shall also be liable to pay penalty in terms of the provisions of [clause (c), clause (d) or clause (e) of sub-section (1) of section 11AC of the Excise Act.] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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