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TMI Blog2017 (11) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation - Held that: - on the background of admission of issuance of double set of invoices, the suppression of facts, willful mis-statement with intent to evade duty is also established, for which reason I find that the invocation of extended period is also justified. It may be true that the allegation of clandestine clearance cannot be proved with mathematical precision, however, on totality of facts and evidences placed before me, I am of the view that the department has been able to prove the case of wrongful availment of credit as well as clandestine clearance of goods on the basis of balance of probabilities. Appeal dismissed - decided against appellant. - E/41867/2015 - Final Order No.42502/2017 - Dated:- 31-10-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri S. Ramachandran, Consultant for the Appellant Shri R. Subramaniyam, AC (AR) for the Respondent ORDER Brief facts are that the appellants are engaged in the manufacture of PVC pipes and were availing the facility of CENVAT credit on inputs like PVC resins, stabilizers etc. On a surprise verification done by the Preventive Unit of the department, it came to light that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoved clandestinely or the penalty thereon. It is also submitted by him that the appellant is not disputing the statement of Shri Ramadoss of M/s. Shree Mahaveer Impex who has supplied raw material by issuing invoices to the quantity of 54 MTs. (b) That no evidence has been adduced by the department to justify that credit was taken without actual receipt of inputs. Out of the three suppliers two of them had categorically stated that they had actually supplied the inputs and that they had received payment from the appellant. This is reflected in para 4 of the show cause notice. Only the third supplier M/s. Shree Mahaveer Impex has admitted to have supplied 10 MTs of inputs by raising invoices for supply of 54 MTs. Thus, in any case, the demand is maintainable only to the extent of 44 MTs. (c) The department has not proved the quantification of duty demand on the basis of input-output ratio. According to the investigation, it is stated that the appellant had not received certain quantity of inputs. But there is no evidence to show that there was shortage of physical stock of inputs in the factory when compared to the stock reflected in the books. (d) Further, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has availed irregular credit without actual receipt of raw materials and therefore the demand on this count has to be set aside. He relied upon the following decisions of the Tribunal:- (a) M/s. G.S. Alloy Castings Ltd. Unit II Vs. Commissioner of Central Excise, Guntur - 2015-TIOL-1696-CESTAT-BANG (b) Commissioner of Central Excise, Ludhiana Vs. Pee jay International Ltd. - 2010 (255) ELT 418 (Tri. Del.) (c) Commissioner of Central Excise, Pune I Vs. Pioneer Industries - 2014 (306) ELT 671 (Tri. Mum.) 3. The ld. AR Shri R. Subramaniyam reiterated the findings in the impugned order. He argued that the statement of the Director is binding on the appellant and the Director has categorically admitted that they have diverted the finished products. Further, it is clear from the statement of the supplier M/s. Shree Mahaveer Impex that on the invoices issued for the quantity of 54 MTs, the appellant has received only a quantity of 10 MTs into the factory, though they have accounted 54 MTs and availed credit on the same. It is also argued by him that evidence is not based merely on the statement but on the accounts and records unearthed on verification by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show cause notice has been issued on 21.3.2010 invoking the extended period of limitation. The officers visited the premises on 11.12.2009 and thereafter statements were recorded and after completion of the investigation, show cause notice has been issued invoking extended period as it is revealed that the appellant has willfully suppressed facts and also mis-represented the same especially having raised parallel invoices with the intention to evade payment of duty. Thus, invocation of extended period is legal and proper. 4. Heard both sides. 5. The main contentions raised by the ld. consultant is two-fold. Firstly, that the appellant has availed CENVAT credit on the actual inputs received in the factory and that has been entirely accounted by them. Secondly, that the department has not been able to establish that the appellant has availed credit on inputs which are not been used in the factory basing upon the input-output ratio. 6. At the outset, it is to be stated that the ld. counsel has submitted that the appellant is not contesting the duty demand raised on alleged clandestine removal of the finished goods. Secondly, it is also submitted by the ld. consultant that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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