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TMI Blog2023 (4) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescription entitling for availment of the exemption is in effect a mandatory requirement, in the absence of which consequential benefits do not flow, the onus to establish their entitlement to availment utilization of the said credit calls for adherence, to the norms specified. These are as stated mandatory requirements and non-adherence thereto is liable to denial disallowing of the said credit. The conditions stipulated can certainly not be considered merely procedural but is a sine qua non to the availment of the exemption contained in the notification ibid. The non-repudiation of the claims of the department doubting the authenticity and manipulation of the evidence tendered by the appellant as concocted, fabricated and after thought pointed out inter-alia by way of specific examples, the invocation of the willful misstatement/ suppression clause in the show cause notice in terms of the proviso to Section 11A is upheld. Besides, it is an admitted position that the appellant could produce no document whatsoever, in support of their contention for credit availment for the year 2006-07. There are no merit in the appeal filed by the assessee - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... y also failed to produce job work challans and other records/registers evidencing the possession of inputs, as prescribed in terms of notification No. 214/86-CE. 4. In his findings the Ld. Adjudicating authority while analyzing the response of the appellants to the Show Cause Notice, has however, held as under; " The noticee, in the instant case could neither submit the said undertaking, nor, maintained other job work related records and also failed to fulfill the mandatory requirements prescribed under the Notification No. 214/86-CE, as alleged in the demand notice. However, at the time of personal hearing, held on 02.02.2012, the noticee sought 07 (seven) days time to submit all account of the Pig Iron, claimed to have been subjected to job work alongwith challans etc. But, even at the time of personal hearing, they failed to produce the copy of undertaking, as required under Notification No.214/86-CE to be submitted to the Deputy/ Assistant Commissioner of Central Excise, having jurisdiction over the factory of job worker. However, on 27.02.2012, they submitted a statement of Pig Iron dispatched to Asit Iron Foundary Pvt. Ltd., alongwith few job work challans. On verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e job challans under which the processed materials were returned to them by the job-worker pertaining to the year 2006- 07 are not traceable. All these observations go to show that their plea of job work is nothing but concocted fabricated and afterthought. Besides, it is an accepted fact that the noticee do not have any infrastructure to work upon the said inputs viz., Pig Iron. Thus, it can be inferred that the Pig Iron, on which the CENVAT Credit has been availed of, are not used in or in relation to the manufacture of final products." 4.1. In terms of sub rule (I) of Rule (3) of the CENVAT Credit Rules,2004, a manufacturer of finished goods is allowed the benefit of availment of CENVAT Credit on any inputs used in the manufacture of intermediate goods, processed by way of job work, availing the benefit of exemption as contained in MF, DR Notification No. 214/86-CE dated 25.03.1986, and received by them for use in or in relation to, the manufacture of final product. The said notification in para 2 thereof states as under;- "2. The exemption contained in this notification shall be applicable only to the goods in respect of which - (1) the supplier of the raw materials or semi- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The conditions stipulated can certainly not be considered merely procedural but is a sine qua non to the availment of the exemption contained in the notification ibid. Having failed to demonstrate cogently the utilization of the said Pig Iron (input) in the manufacture of finished goods by way of a job work process and for the utilization of which admittedly they do not have the necessary infrastructure within their factory, the appellants shall not be able to utilize the credit availed thereon and the same is recoverable from them. 6.1. On the plea of the appellant that the demand was barred by limitation, I find that the period for which the impugned credit has been availed, spans across August, 2006 to January, 2009, whereas the assessee were raised the notice on July, 26, 2011. The relevant date therefore shall be construed with reference to the due date on which the said return is required to be filed / or actually filed. As the period involved in the Show Cause Notice stems from 08.08.06 onwards and the demand was raised on July, 26, 2011, the same is well covered within extended timeframe of five years & hence not barred by limitation. Obviously the limitation shall be reck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring the appellant organization as a sick company in terms of Section 3(I)(o) of the SICA (SP), 1985 and appointing an Operative Agency to prepare a viability study report and a revival scheme for the company. This however is in consequential to the disposal of the present case. 9. The Hon'ble Apex Court in the case of Indian Aluminum Company Ltd., Vs. Thane Municipal Corporation 199 (55) ELT 454 (S.C.) while relying on the ratio of the law propounded in Kedarnath Jute Manufacturing Co. Vs. Commercial Tax Officer- 1965 (3) SC, R-626, had categorically denied the admissibility of a concession or an exemption when the non-observance of the said condition even it were to be procedural were likely to facilitate the commission of fraud and introduce administrative inconvenience. In the said case, in the absence of a declaration required to be filed for availment of the incentive, it was pointed out by the Hon'ble Apex Court that though the said requirement, even though procedural, defeated the objective of verification as could have been undertaken by the octroi authorities, and therefore, disallowed the accrual of the desired concession. It held the failure to file the requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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