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TMI Blog2019 (10) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is not sustainable. As the issue has already been settled that Revenue has failed to establish that there was no manufacturing activity and we also take a note of the fact that Jammu Commissionerate has frequently visited the factory premises and found manufacturing the goods going in their own, in that circumstances, the allegation made in the impugned order are not sustainable against the appellant - appeal allowed - decided in favor of appellant. - Appeal No. E/60230/2016 - A/60880/2019 - Dated:- 22-10-2019 - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR. RAJU, MEMBER (TECHNICAL) Shri Navin Bindal, Advocate for the Appellant Shri A. K. Saini, Authorised Representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisidictional Commissionerate issued show cause notices to various J K based manufactures raising demand 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 power by the appellant. Therefore, by way of the impugned order, the cash refunded to the appellant was sought to be demanded. Against the said order, the appellant is before us. 3. The ld. Counsel for the appellant submits that on the basis of similar investigation conducted of M/s Nanda Mint Pine Chem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries of entry and exit all the vehicles, therefore, it cannot be said that the raw material/finished goods have never entered or left in the state of Jammu Kashmir, therefore, the allegation on the basis of the investigation conducted by the Commissioner of Central Excise, Merrut is not sustainable. 8. Further, we take note of the fact that during the period of investigation itself, the appellant continued their activity by procuring inputs from U.P and selling the goods after manufacturing to the U.P based buyers and the Department allowed to continue the same during the course of investigation which shows that the allegation on the basis of investigation conducted at the end of Commissioner of Central Excise, Merrut i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts at all. There is hardly any time left for further investigation to strengthen the case as process is very time consuming and most of these of units have closed their factories due to withdrawal of Central Excise Duty on all Mentha products w.e.f 27.02.2010. Thus, the investigation may not be in tune with the investigations conducted 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. Moreov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Jammu on 31/03/2008, wherein it was held that M/s Infotech System, Jammu was manufacturing the goods was not accepted by the Original Authority stating that the said Commissioner, Jammu did not see himself that the goods have been manufactured. If such a logic is accepted then the basic system of assessment by Authorities under tax statute needs to be concluded to have been not properly understood by the Adjudicating Authority. The present system of assessment in Central Excise is record based. The Officer assessing the duty is not required to be present when the goods are being manufactured to witness the process of manufacture. The adjudication is to be done on the basis of evidence produced before the Adjudicating Authority. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty as an independent adjudicator. We, therefore, set aside both the impugned Orders-in-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 Central Excise, Merrut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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