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TMI Blog2018 (1) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant duty has been discharged by the appellant and the goods are cleared from main-appellant's premises on duty paying documents hence when the goods are not available for confiscation, the question of confiscation does not arise - It is settled law that when the goods are not available for confiscation, question of imposing redemption fine in lieu of confiscation does not arise. As regards demands raised, since the appellant has not contested the said demands before the lower authorities and also before this bench, the demand of an amount of ₹ 1,90,983/- stands upheld and having paid the same, the appropriation ordered by the lower authorities is also correct - the equivalent amount of penalty imposed on the main-appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods. Investigation was carried out at the end of M/s Synoprene Polymers Pvt. Ltd. and various statements were recorded of the Directors and as a follow up action the main appellant's premises were also checked and statement of the individual herein was also recorded. On completion of the investigation it was noticed that the main appellant had availed ineligible CENVAT credit of ₹ 1,90,983/- with receiving the material/inputs. The adjudicating authority as well as the appellate authority confirmed the demand raised and appropriated the amounts which was paid by the main-appellant, demanded interest and also imposed penalties on both the appellants. Since the main-appellant had utilized this ineligible CENVAT credit for disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is over, is hit by limitation as held by the Tribunal in the case of Gammon India Ltd. v. Commissioner of Central Excise, Goa [2002 (146) ELT 173 (Tri.-Mumbai)] which has been upheld by the Hon'ble Supreme court [2002 (146) ELT A313]. He submits that the impugned order be set aside and appeals be allowed. 6. Learned Departmental Representative, on the other hand, submits that the claim of the appellant's counsel that there was no corroborative evidence to show that appellant had raised credit without receipt of the material is totally incorrect as the supplier of the material has himself categorically stated that the main-appellant herein was issued only documents to raise the CENVAT credit and the amount paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot available for confiscation, question of imposing redemption fine in lieu of confiscation does not arise. In view of this I hold that the findings recorded by both the lower authorities on the finished goods and inputs being liable for confiscation is incorrect and liable to be set aside and I do so. 8. As regards demands raised, since the appellant has not contested the said demands before the lower authorities and also before this bench, the demand of an amount of ₹ 1,90,983/- stands upheld and having paid the same, the appropriation ordered by the lower authorities is also correct. As regards the penalty imposed on the main-appellant, I find that the arguments putforth by the Learned Counsel may not carry their case any furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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