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TMI Blog2018 (7) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... ured by the appellants unless removed without payment of duty from the factory cannot be seized and confiscated. CENVAT credit is admissible on inputs on receipt of the goods and unless it is establish that the inputs were not received or unless it is establish that inputs were cleared as such the Cenvat credit cannot be recovered - In the present case, there is no evidence either to establish that inputs on which reversal of Cenvat credit was sought were alleged not to have been received by the appellant - Further, there is no evidence that the same were removed without reversal of CENVAT credit. Appeal allowed - decided in favor of appellant. - E/57 & 58/2011-EX[DB] - FINAL ORDER NOs-71104-71105/2018 - Dated:- 13-6-2018 - Mr. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed upon him. Another show cause notice dated 21.05.2009 was issued, calling upon to show cause as to why an amount of ₹ 1,32,68,939/- representing Cenvat credit involved in 3666.040MT of raw materials found short during stock verification on 28.08.2008. On contest both the show cause notices were adjudicated through the impugned Order-in-Original dated 28.09.2010. The appellant contended before the original authority that the officers of Central Excise Department remained in the factory of appellants for about 13 hours on 28.08.2008 and they claimed to have conducted stock taking of 3780 MT of CTD/TMT Bars and also that of raw materials such as M.S. Ingots which is practically not possible. They contended that the method of stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the show cause notice dated 25.02.2009 clearly indicates that the stock taking of inputs and final products were not done on the basis of actual weighment. The said show cause notice indicates that about 3800 MT of Final products and inputs were recorded to have been physically verified in a period of 13 hours, which is practically impossible. He has further submitted that 1431.560 MT of TMT Bars and 105 MT of M.S. Strips which were their final products were lying in the factory and the point of payment of duty was removal from the factory and since they were not removed from the factory, they did not become contravening goods and as a result, were also not liable for confiscation. The original authority should have concluded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case also intention to remove the goods not accounted for clandestine removal, cannot be established and therefore that part of the impugned order is not sustainable. The learned Counsel further relied on the ruling by Hon ble Allahabad High Court in the case of CCE, Lucknow Vs Star Steels reported at 2015 (315) ELT 495 (All). He submitted that in the said case 581MT of goods were stated to have been weighted in 6 Hours time and that the Commissioner (Appeals) in the said case had found that the stock of few hundred tons could not have been weighted in 6 hours time. The learned Counsel have submitted that the show cause notice dated 25.02.2009 clearly indicates that the weighment was not carried out on 28.08.2008. Therefore, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts unless removed without payment of duty from the factory cannot be seized and confiscated. Further, we also accept the contention of appellant that Cenvat credit is admissible on inputs on receipt of the goods and unless it is establish that the inputs were not received or unless it is establish that inputs were cleared as such the Cenvat credit cannot be recovered. In the present case, we do not find any evidence either to establish that inputs on which reversal of Cenvat credit was sought were alleged not to have been received by the appellant. Further, there is no evidence that the same were removed without reversal of Cenvat credit. Therefore, we set aside the impugned order and allow both the appeals. Appellants shall be entitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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