9911796707
TMI Blog2019 (6) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... of manufacturing has been brought on record. Moreover, no evidence has been produced by the Revenue that the said goods have not been diverted to be used by the appellant-manufacturer to manufacture final products, therefore, the allegation made against the appellant is only on the basis of assumptions and presumptions. The Revenue has not come with any evidence to show that the said inputs cannot be used by the appellant-manufacturer to manufacture their final products. No expert opinion has been obtained by the Revenue. No statement of transporter has been recorded to allege diversion of the goods. Therefore, the credit cannot be denied. Diversion of goods and non receipt of goods by the appellant- manufacturer - scope of SCN - HELD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvatable invoices. On the basis of statement and description of the goods, it was alleged that the some goods are not in the nature of the scrap and appellant No.2 has issued invoices to appellant No.1 by making the word scrap has been added on the goods purchased by appellant No.2. On the basis of investigation conducted, a show cause notice was issued to the appellant to both appellants on the ground that the steel melting scrap which is an input for appellant No.1 does not include any of the items mentioned in the description of the goods found during the course of investigation. The said items were purchased by the appellant No.2 and sold in the same condition falling under Chapter headings are neither inputs nor capital goods for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods have been diverted by the dealer and were not received in the factory of the appellant No.1. Therefore, the impugned order is to be set aside relying on the decision of Hon ble Supreme Court in the case of Reckitt Colman of India Limited vs. CCE-1996 (88) ELT 641 (SC( and CCE vs. Sun Pharmaceuticals Indus.Ltd.-2015 (326) ELT 3 (SC). There was no allegation in the show cause notice regarding diversion of the goods or non receipt of inputs by the appellant NO.1, therefore, the findings of the adjudicating authority has travelled beyond scope of show cause notice. 4. He further submits that there is no enquiry of diversion of goods from dealer or from appellant-manufacturer. No visit was made in the factory of appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order be set aside. To support his contention, he relied upon the decision of this Tribunal in the case of Sharman Strips Pvt.Ltd. and others vide Final Order No.63607- 63618/2018 dt.6.12.2018, Dashmesh Castings Pvt.Ltd.-2015 (320) ELT 450 (Tri.-Del.). 7. On the other hand, Ld.AR supported the impugned order and submits that it is a fact on record that the material has been supplied by appellant No.2 can be used as such in the open market cannot be the material for appellant No.1 to be used in their furnace. Moreover, the inputs used by the appellant in the manufacture are of prime quality material can be sold as such, therefore, the same cannot be inputs for the appellant to manufacture final goods, the credit was rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that they have supplied the goods to the appellant M/s.Tharaj and received payment thorugh account payee cheque. We further take note of the fact no investigation was conducted at the end of the transporter by the Revenue to prove that the goods have not been received by the appellant in their factory. Moreover, no investigation was conducted to prove that these inputs have been diverted by the appellant M/s.Tharaj in the market and procured bazaar scrap from the open market. As the Revenue has not come with any evidence on record to show that the goods have been substituted by bazaar scrap, the allegation against appellant is not sustainable as it is based on assumption and presumption without bringing any cogent evidence on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter has been recorded to allege diversion of the goods. Therefore, the credit cannot be denied. 11. Further, we find that in the impugned order, the adjudicating authority has alleged that there is diversion of goods and non receipt of goods by the appellant- manufacturer. As there is no such allegation in the show cause notice to allege that the goods were never received by the appellant-manufacturer and supplied by the dealer, in that circumstance, the adjudicating authority has gone beyond the scope of show cause notice. Such findings of the adjudicating authority are not sustainable in the eye of law. Therefore, on merits as well as scope of show cause notice, the impugned order deserves no merit and therefore, the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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