9911796707
TMI Blog2023 (11) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... paying duty on finished products for few months and was not availing SSI exemption. With effect from 1.4.2007, vide letter dt. 1.4.2007, the appellant intimated the department that they are again going to avail full exemption under Notification No.8/2003-CE dt. 1.3.2003 as amended. They further stated that the they had expunged the balance cenvat credit of Rs.35,835/- (BED) and Rs.576/- (Education Cess) being the credit involved on the inputs lying in stock as on 31.03.2007. 2. As per sub-rule (2) of Rule 11 of the Cenvat Credit Rules, 2004, "a manufacturer who opts for exemption from the whole of the duty of excise leviable on goods manufactured by him under a notification based on the value or quantity of clearances in a financial year, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance credit of Rs.7,28,121/- attributable to the CENVAT credit contained in both the raw materials as well as finished goods lying in stock as on 31.3.2007. On such details, a show cause notice was issued to the appellant proposing to demand the wrongly availed cenvat credit of Rs.7,28,121/- involved in closing of stock of raw materials contained in finished goods for the year 2006-07 and for proposing to impose penalty. After due process of law, the original authority confirmed the demand along with interest and imposed equal penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 15 of CCR 2004. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 5. Ld. Counsel Sri M. Karthikeyan appeared and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat appellant does not contest this liability. However, with regard to the allegation that there is further input stock as raw materials as well as inputs stock contained in finished goods as on 31.3.2007 is not established by the department by any evidence. It is merely an assumption of the department that since there are five invoices after 15.3.2007 which was not included in the closing stock declared by the appellant, there may be other inputs stock also. Basing on such assumption without giving any calculation to the appellant, the department has enhanced the value of input stock as on 31.3.2007 and demanded reversal of cenvat credit of Rs.7,28,121/-. 5.2 The discussions of the Commissioner (Appeals) in para 11& 12 was also adverted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) in para- 10 & 11 was adverted to by the Ld. A.R to argue that the appellant had not included 5 invoices in the closing stock while declaring their transition from duty paying unit to SSI unit. If the Department had not discovered the same, the wrongly availed credit would not have come to light. For this reason, the quantification of closing stock of inputs disclosed by the appellant cannot be accepted. The adjudicating authority has rightly confirmed the demand on the basis of the calculation of the total inputs stock shown in the balance sheet. 6.1 Ld. A.R also argued that there is suppression of facts on the part of the appellant with intent to evade payment of duty. As the five invoices having not been included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck of inputs on which credit has been availed and is required to be expunged. Merely because these five invoices were not included in the closing stock, the department has enhanced the input stock as on 31.3.2007 on assumptions and presumptions. After perusal of the records, we do not find that the enhancement of input stock by the department other than five invoices are supported by any evidence. In para-11 of the impugned order, the Commissioner (Appeals) records that a report was called for from the Divisional Office. However, no such report is placed as relied upon document and it has not been furnished to the appellant or made part of the adjudication order. We find no evidence to establish the enhancement of the input stock credit ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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