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TMI Blog2018 (2) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery provision during the relevant period which came only on 01.03.2013. Similarly amount collected through debit notes without reversing the credit to the tune of 3,89,825/- cannot be recovered from the appellant because there was no recovery provision during the relevant period which came only on 01.03.2013. Denial of other credits for the period January 2004 to February 2005 for the fabrics consigned to others received by the appellant - Held that: - the appellants have submitted detailed documentations to prove their correlation but the same was not considered by both the authorities below. In view of this, the case is remanded back to the original authority to examine afresh all the documents which may be produced by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and cables used for transmission of power from the transformer to the mains. 1,88,886/- 01/2004 to 02/2005 Availment of cenvat on the invoices not consigned to appellant. 7,88,438/- 09/2003 to 02/2005 Raised debit notes on the suppliers on the grounds of plea of fabric, returning or rejected fabric, returning of rejected fabric or defective fabric, for short receipt etc. 3,98,548/- Show-cause notice proposed to recover cenvat credit of ₹ 19,16,550/- (Rupees Nineteen Lakhs Sixteen Thousand Five Hundred and Fifty only) under Section 11A along with interest and penalty. In reply to the show-cause notice, the appellant contended that only ₹ 2,16,066/- (Rupees Two Lakhs Sixteen Thousand and Sixty Six only) out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of ₹ 19,16,550/- (Rupees Nineteen Lakhs Sixteen Thousand Five Hundred and Fifty only) and appropriated the amount of ₹ 2,16,066/- (Rupees Two Lakhs Sixteen Thousand and Sixty Six only) voluntarily paid by the assessee and also appropriated the interest amount of ₹ 50,363/- (Rupees Fifty Thousand Three Hundred and Sixty Three only) and imposed equal penalty under Section 11AC. Aggrieved by the said order, appellant filed appeal before the Commissioner who vide the impugned order dated 15.04.2010 rejected the appeal of the appellant. Hence the present appeal. 2. Heard both the parties and perused the records. 3. Learned consultant for the appellant submitted that the impugned order is not sustainable in law as the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. In fact the goods were cleared to the production within the factory and the co-relation was established in the documents. The second allegation is that the appellant has availed the cenvat credit on capital goods used in the office out of ₹ 1,88,886/- (Rupees One Lakh Eighty Eight Thousand Eight Hundred and Eighty Six only) the appellant accepted the liability for ₹ 77,627/- (Rupees Seventy Seven Thousand Six Hundred and Twenty Seven only) and contested the remaining amount of ₹ 1,11,258/- (Rupees One Lakh Eleven Thousand Two Hundred and Fifty Eight only) on the ground that an amount of ₹ 61,839/- (Rupees Sixty One Thousand Eight Hundred and Thirty Nine only) relates to cable for transmission of power from trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that demand is made in terms of Rule 3(5) of Cenvat Credit Rules 2004 and there was no provision for recovery during the relevant period and it was only on 01.03.2013 the provision was added. Therefore, there is no basis for the demand in view of the decision of Heidelberg Cement India Ltd. cited supra. Further he submitted that the show-cause notice has not established that the credit was availed on those goods. He also submitted that the debit notes are for price difference, debit note was for defective goods supplied and not for goods returned. He also submitted that the documents were submitted to establish the said facts and the same were not accepted in spite of co-relation. 4. On the other hand the learned AR defended the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correlation but the same was not considered by both the authorities below. In view of this, I am of the considered opinion that for this purpose, the case is remanded back to the original authority to examine afresh all the documents which may be produced by the appellants to establish the receipt of the goods in the factory. 6. In view of my discussion above, I partly allow the appeal of the appellant and remand the matter to the original authority for examining the allegation for non-receipt of the material during the period January 2004 to February 2005 by the appellant. The original authority will pass a reasoned order after complying with the principles of natural justice. The appeal is accordingly disposed of in the above terms. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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