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TMI Blog2019 (5) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... . Moreover, the entries of vehicles at the toll barriers also certified that the movements of raw material and finished goods. Further during the period of investigation itself, the Jammu based manufacturer were allowed continue their activity by procuring inputs from UP based supplier and selling goods manufacturing to their buyer/appellant. During the course of investigation, itself shows that the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants were not manufactured the goods during the impugned period. The Jammu based manufacturer were manufacturer during the impugned period and paid the duty on the goods manufactured by them. Consequently, the cenvat credit can t be denied to the recipient of goods located in the State of U.P i.e. M/s Sangam Aromatics - the allegations against the appellants are based on assumption presumption which is not sustainable - penalty also not imposable. Appeal allowed - decided in favor of appellant. - Appeal No. E/60153, 60108, 60154-60157,60166,60307/2019, E/62024/2018 - Final Order No. 60498-60506/2019 - Dated:- 3-4-2019 - Mr. ASHOK JINDAL, MEMBER (JINDAL) And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of duty refunded to them who are availing area based exemption under Notification No. 56/2002-CE dated 14.11.2002. The adjudicating authority has confirmed demand on the grounds that the farmers are non existence ensuring non supply of raw material by commission agents to J K based units and absence of evidence of manufacture by the Jammu based manufacturer. Therefore, by way of the impugned order, the cenvat credit availed by M/s Sangam Aeromatics was denied and penalties on all the appellants were imposed. Against the said orders, the appellants are in appeals before us. 3. Ld. Counsel appearing on behalf of the appellants and submits that no investigation was conducted at the end of the Jammu based manufacturer to ascertain the fact whether the Jammu based manufacturer are manufacturer or not. Moreover, the case has been booked only on the basis of investigation conducted by the Commissioner Merrut-II. He further submits that all the vehicles used for transportation alleged raw material/trucks and there cannot be 100% of consignments moved one place to another on papers. The existence of trucks itself prove the case of the Jammu based manufacturer. Moreover, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory and nothing adverse was reported. He was further submits that the Jammu based manufacturer were operating under Notification No. 56/2002-CE dated 14.11.2002 and filing refund claim of the duty paid through PLA and all the refund claims have been sanctioned to then after due verification by the Jurisdictional Range Officer by passing speaking orders. He further submits that raw material received by the Jammu based manufacturer were used in manufacture of goods cleared on payment of duty to the buyer/appellant. The adjudicating authority has ignored the following facts:- (a) The certificate from Commercial Tax Officer, Jammu. (b) The certificate from General Manger, District Industries Centre, Jammu. (c) Permission for running the factory into three shifts throughout the year from Inspector of Factories and Boilers, Jammu. (d) Permission for installation of additional machinery for enhancing its capacity/ manufacturing additional product inter-alia on the condition thatunit will operate on DG sets. (e) Annual financial statement in form ER-4 and Annual Installed capacity production. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of goods. 7. On the other hand, the ld. AR reported the findings of the impugned order. 8. Heard the parties and considered the submission. 9. We find that in this case the sole allegation against the Jammu based manufacturer are based on the investigation conducted by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were non-existence. Therefore, commission agents never supplied inputs to the Jammu based manufacturer and the Jammu based manufacturer did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the Jammu based manufacturer has not manufactured the goods at all. 10. We further take note of the fact that, the investigation was not conducted at the end of the Jammu based manufacturer and whole case has been based on the investigation conducted at Commissioner Central Excise, Merrut-II. Without investigation, it cannot be held that the Jammu based manufacturer were not manufacturer during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of Nanda Mint and Pine Chemicals Ltd. (Supra), wherein this Tribunal observed as under: 6. We find that in this case the sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were nonexistence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all. 7. We take a note of the fact that the check post movement of trucks which were carrying inputs as well as finished goods were found entered. We further take note of the fact that the appellant has produced the evidence of the entry of all the transport vehicles i.e. trucks which have entered in the state of Punjab and have left the state of Punjab, as the same has been certified by the Punjab Sales Tax Department having entries of entry and exit all the vehicles, therefore, it cannot be said that the raw material/finished goods have never entered or left i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the Central Excise Commissionerate Merrut-II. 9. The said report also support the case of the appellant wherein it has been clearly mentioned that during the periodical checks by the departmental officers, the appellant found manufacturing the goods. Moreover, no discrepancy was found and on toll barriers it was found that the vehicles carried inputs/finished goods found entered. Moreover, the District Centre also certified the said fact. 10.We further take note of the fact that the various other departments namely Pollution Control Department, District Industries Department, Electrical Department have visited the factory of the appellant and found functioning. All these facts have not been disputed by the Revenue. As there is no corroborative evidence to show that the appellant were not manufacturing the goods, therefore, the allegation alleged in the show cause notice is not sustainable. 11.We further take note of the fact that on the basis of the same investigation conducted by the Commissioner of Central Excise, Merrut, the case was booked against the various parties namely M/s Arora Aromatic Others Vide Final Order No. 71939- 71959/2017 dated 01.11.2017, this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers have not seen the goods being manufactured by their own eyes. Further, the receipt of inputs was verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority, Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. We, therefore, set aside both the impugned Ordersin-Original dated 29/01/2010 29/03/2011 and allow all the appeals filed by appellant. The appellant shall be entitled for consequential relief. All the demand and penalties imposed are also set aside. All the Miscellaneous/Stay Applications stand disposed, as infructuous. 12.In view of the above observations, we hold that without bringing any concrete evidence against the appellant on record, the proceedings against the appellant are not sustainable, therefore, the show cause notice issued to the appellant is only on the basis of the assumption and presumption and investigation conducted by the Commissioner of ..... 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