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TMI Blog2008 (8) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ndran, Member (J) Dr. T. Tiju, JDR, for the Appellant. None, for the Respondent. [Order]. - This appeal is filed by the Revenue against Order-in-Appeal No. SDK(22)22/MV/03, dated 31-1-2003. 2. When the matter was called out on 30-5-2008, 4-7-2008 1-8-2008, none appeared for the respondent as the notices for hearing were returned back by postal authorities. Hence, on 1-8-2008, Bench directed that notice be issued through the office of the Jt. CDR. 3. The learned SDR submits that notice has been served to Shri Bharne, Director of M/s. Nimish Eng. Pvt. Ltd. for hearing on 29-8-2008. Despite this, the respondent is unrepresented and there is no request for adjournment. I find that the respondent has filed a cross-objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which admitted by the learned Commissioner (Appeals) is also the same. It is his submission that the irregular availment of credit is further confirmed by the physical stock taking during the course of the investigation. It is his submission that in view of all this the orders of both the lower authorities may be set aside and an appropriate view may be taken. 7. On perusal of the impugned order, I find that the Commissioner (Appeals) has heard the appeal filed by the appellant against order-in-original. While coming to the conclusion, the learned Commissioner (Appeals) has held as under:- "11. I have carefully considered the grounds in appeal and the rejoinder filed by the respondent, with support of the law on the disputed issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter claim made by the respondent. I find that the balance of convenience on fact and law rests with the respondent, when there is no claim by the department that the authenticity of the disputed invoices were got verified from the consignor's end and found not issued. The gauge thickness for use in the manufacture of final products as claimed by the department is based on some confessional statements of an employee but without the support of any technical literature. In the ratio of the Tribunal's decision in the case of Dulichand Silk Mills P. Ltd, the said confessional statement cannot be relied upon as the sole evidence sufficient for accepting the claim of substitution of inputs and deliberate irregular availment of Modvat credit. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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