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TMI Blog2023 (8) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... te quantity of inputs required for manufacture of specified quantity of final product. It is, therefore, clear that the show-cause notice was issued on the basis of presumption and therefore, the said show-cause notice is not sustainable. The impugned orders cannot be sustained and the same are set aside - Appeal allowed. - HON BLE SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Appearance: For the Appellant : Shri N.K. Chowdhury, Advocate For the Respondent : Shri P.K. Ghosh, Authorized Representative PER P.K.CHOUDHARY : The present appeal is arising out of Order-in-Appeal No. 02/Kol.III/19 dated 25.02.2019. 2.1 The facts of the case in brief are that the appellant is engaged in the manufacture and clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the initial stage it was very fastly absorbed as the reaction proceeds and conversion takes place, Sulphur absorption is reduced and it passes through the Tower and has to be recovered from the scrubber. Hence, the sulphur Di Oxide which is not properly absorbed in the scrubber will go into the atmosphere un-reacted. The scrubber has its own limitation and its capacity is limited since their plant has been made out on the basis of their own experience and not based on very specific parameters and they have not checked on it ..The excess consumption was also due to damaged Tower which was made in 1997 and over a period of time, it was damaged and there were lot of losses on account of leakages. Finding the situation getting worse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly Solutions Private Limited Vs. Commissioner of Central Excise, Bangalore : 2020 (41) GSTL 520 (Tr.-Bang.). 4. The Ld. Authorised Representative for the Revenue, has justified the impugned order. 5. Heard both sides and perused the appeal records. 6. The ground for the present appeal is that the Department has done theoretical calculation for admissible cenvat credit on assumption and presumption and no actual verification of consumed inputs has been done. I find that there is no basis for arriving at the quantity of inputs which is presumed to be in excess of the so called appropriate quantity of inputs for manufacture. I also find that it is beyond the jurisdiction of the adjudicating authority to decide as to what is the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are received at the factory of manufacture. There is no dispute that the goods were received at the factory. 6. Further, there is no provision under the Cenvat Credit Rules, 2004 for denial of availment of credit merely on the ground that the assessee has admittedly deployed inputs in excess of the (sic) for achieving desired output level. The demand for recovery of the credit held to be ineligible by the lower authorities does not have the sanction of law. Consequently the impugned order is not in consonance with the law and the demand confirmed cannot sustain . (2) Tally Solutions Private Limited (cited supra) 8. The appellants have vehemently fought on the issue of limitation. They pleaded that SCN was issued on 5-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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