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TMI Blog2019 (8) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... NER OF C. EX., SURAT/MUMBAI [ 2003 (8) TMI 108 - CESTAT, NEW DELHI ] , time and again the Tribunal observed that bank statement by itself cannot be the basis for holding that there was undervaluation for clandestine removal - thus, on the basis of differences between the stock statement furnished to the bank and statutory record cannot be the reason to allege the clandestine removal of goods in the absence of any corroborative evidence - Further, no opportunity of cross-examination was granted to the appellant to adduce evidence - demand of duty not sustainable. CENVAT Credit - denial on the ground of non payment for procurement of the input - Rule 3 of Cenvat Credit Rules, 2004 - HELD THAT:- In terms of Rule 3 of Cenvat Credit Rules, 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied the stock and the stock statement submitted by the appellant is correct. Further, it was found that the appellant has not paid to supplier of their input namely M/s Rathi Industries Limited, Gautam Budh Nagar, U.P. and availed the cenvat credit on the goods received from them. Therefore, it was alleged that the appellant has not received the said inputs, consequently, the appellant is required to reverse the said credit. On this basis, a show cause notice was issued to the appellant to demand duty, for reversal of cenvat credit and to impose penalties on all the appellants. The appellant contested the show cause notice on two grounds namely demand raised on the basis of stock statement furnished to the bank and denial of cenvat credit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit. It does not talk anywhere about that if payment is not made, they are not entitled to take cenvat credit and therefore cenvat credit cannot be denied. 4. On the other hand, learned Authorised Representative appearing for the Department opposes the contention of the learned Counsel and submits that the case law relied by him are not applicable to the facts of the present case and at the time of search, some shortage were found which shows that the modes operandi of the appellant to take cenvat credit. Moreover, the bank officials have verified the stock physically and the stock statement furnished to the bank is a correct statement. Moreover, the appellant has not paid any amount to M/s Rathi Industries Limited. A prudent bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher financial limit from the bank. Appellants had explained the reasons for seeking higher financial limit and had stated that they had not manufactured and removed the goods clandestinely and also they had brought to the notice of the Collector that to manufacture that much quantity of the goods the appellants required to have purchased 174 Tons of HDPE granules which could have valued at ₹ 77 lakhs and the total production could have been for ₹ 1 crore. They submit that on the face of this, they had made a plea for seeking higher financial limits which itself suggests that they were not financially sound and the figures were furnished with an intention to seek higher financial limit. It is for the Revenue to show that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that were prepared in favour of the genuine buyers and the brokers. In the absence of any material on record, we are impelled to think that the factual analysis made by the Tribunal cannot be found fault with. 7. Further, in the case of Beekaylon Synthetics vs. Commissioner of Central Excise, Surat/Mumbai -2003 (158) ELT 307 (Tri. Del.), time and again the Tribunal observed that bank statement by itself cannot be the basis for holding that there was undervaluation for clandestine removal. Therefore, I hold that on the basis of differences between the stock statement furnished to the bank and statutory record cannot be the reason to allege the clandestine removal of goods in the absence of any corroborative evidence. Further, no opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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