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TMI Blog2024 (9) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of toll-receipts evidencing crossing of J K border and the report of Excise Taxation Authority, Patiala (Punjab) evidencing the entry of all vehicles carrying consignments at Madhopur Check Post etc., but the same were completely ignored by the Adjudicating Authority to confirm the demand. This issue is no more res integra and the Tribunal has already decided a number of cases arising out of the same investigation and evidence put forth by Meerut-II, Commissionerate and all the appeals have been allowed by the Tribunal in favour of the assessees. Extended period of limitation - HELD THAT:- It is found that substantial demand is barred by limitation because the appellants have not concealed any facts from the department and have been regularly filing ER-2 Returns. The copies of all the returns have also been produced on record. The appellants have also produced a number of documentary evidences to show that they had exercised due diligence in following all the prescribed procedures and also declared all requisite information in their ER-2 Returns. Penalties on the partner and the Manager - HELD THAT:- There is nothing on record to show that they have violated the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ind., Kathua (6 consignments); (VIII) M/s. Narbada Ind. (11 consignments); (IX) M/s. Khazana Corporation (1 consignment); (X) M/s. Alpha Menthol, Gangyal (1 consignment); and (XI) M/s. Eldorado Holdings (3 consignments). Total 53 consignments of excisable inputs were received by the applicant. The supplier units located in the J K were availing benefit of exemption under Notification No. 56/2002-CE 57/2002-CE both dated 14.11.2002 and the unit of Assam was availing exemption under Notification No. 32/99-CE 33/99-CE both dated 08.07.1999. 2.3 On receipt of the said inputs in the factory, the appellant made entries in their RG23A (Part-1) Register i.e. Record of inputs and sent intimation letters of receipt of the inputs to the jurisdictional Range Superintendent who deputed his Inspector to verify the inputs. Inspector visited appellant's unit on the date of receipt of inputs and verified receipt of the inputs and signed the RG23A (Part-1) Register. Copies of the said intimation letters in respect of all the consignments of inputs received and copies of RG23A (Part-1) record bearing signatures of the Inspector have been produced in the appeal-papers. The inputs so received were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the Commissioner, C.E., Jammu based on the investigations conducted by the Commissioner, C.E., Meerut-II, without making any investigations at Commissioner, C.E., Jammu's end, even though the Commissioner, C.E., Jammu, in his letter dated 21.05.2010 addressed to the Chief Commissioner, C.E., Chandigarh had admitted that on close scrutiny of records the following facts had emerged: - (i) most of the consignments of raw material of Jammu units were found entered at the Toll barrier; (ii) officers of the D.I.C., who had assessed and fixed manufacturing capacity of the units, had been regularly verifying their purchase consignments; (iii) the Central Excise Range staff, who had been visiting those units for PBC checks and verification of plant machinery, had reported nothing adverse against those units. 4.3 He further submits that the cases made by the CCE, Jammu against 7 out of the 11 input suppliers of the appellant, against whom penalties had been imposed in the impugned OIO, penalties have already been set aside by the Tribunal, in the appeals filed by various J K based units. Therefore, this issue is no more res integra and has been settled by the Tribunal in various dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during July, 2007 to September, 2007 and October, 2007 to December, 2007 (i.e. during period of dispute) were sanctioned by the Assistant Commissioner vide Orders dated 16.07.2009. The Revenue had challenged the said refund sanction Orders by filing appeals before Commissioner (Appeals), Meerut-II; but the said appeals were rejected by the Commissioner (Appeals) vide O-I-A dated 25.02.2010. The said O-I-A had been placed before the Adjudicating Authority who rejected it as being not cogent evidence. The appellant had also placed the following documents before the Adjudicating Authority to justify taking the Cenvat Credit and the refund of Cenvat Credit, namely (i) ER-2 returns; (ii) sample refund sanction orders which were passed after due verification of facts; (iii) VAT form-31s passed by VAT authorities of U.P. in respect of all the 53 consignments of inputs received by the appellant; (iv) party-wise ledgers in respect of all the 11 input suppliers; (v) proof of passing of all the 53 consignments through Madhopur Check Post in Punjab showing signatures of officers verifying receipt of inputs; (vi) copies of intimations of receipts of inputs sent to the Range Superintendent. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dences in respect of all 53 consignments such as copies of toll-receipts evidencing crossing of J K border and the report of Excise Taxation Authority, Patiala (Punjab) evidencing the entry of all vehicles carrying consignments at Madhopur Check Post etc., but the same were completely ignored by the Adjudicating Authority to confirm the demand. 7. We also find that this issue is no more res integra and the Tribunal has already decided a number of cases arising out of the same investigation and evidence put forth by Meerut-II, Commissionerate and all the appeals have been allowed by the Tribunal in favour of the assessees. In this regard, we may refer to the decision of this Tribunal in the case of Sangam Aromatics others (supra) wherein this Tribunal has decided a bunch of appeals vide Final Order No. 60498-60506/2019 dated 03.04.2019 and held as under: 9 . We find that in this case the sole allegation against the Jammu based manufacturer are based on the investigation conducted by Commissioner of Central Excise, Meerut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were non-existence. Therefore, commission agents never supplied inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il and therefore have not manufactured any Menthol products in their units 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 Meerut-II. 11 . We further take of the fact that the similar issue on identical facts came up before this Tribunal in the case of Nanda Mint and Pine Chemicals Ltd. (Supra), wherein this Tribunal observed as under: 6. We find that in this case the sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Meerut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were nonexistence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all. 7. We take a note of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese 27 units have not purchased crude Mentha oil and therefore have not manufactured any Menthol products in their units 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 Meerut-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. Moreover, the District Centre also certified the said fact. 10. We further take note of the fact that the various other departments namely Pollution Control Department, District Industries Department, Electrical Department have visited the factory of the appellant and found functioning. All these facts have not been disputed by the Revenue. As there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tech System, Jammu or the other suppliers of inputs. Further, the additional evidence submitted by the appellant indicated that in respect of units in Jammu, Central Excise Officers visited the factory premises and seen that the manufacturing process going on was evidence by them and such evidences being on record and submitted by the appellant it was the duty of the Original Authority to accept them and not to discard by saying that the Officers have not seen the goods being manufactured by their own eyes. Further, the receipt of inputs was verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority, Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. We, therefore, set aside both the impugned Ordersin-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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic allegations in the Show Cause Notice was that M/s Arora Aromatics did not receive inputs on which they availed Cenvat credit basically on the contention of Revenue that M/s Ruchi Infotech System, Jammu did not have facility to manufacture the inputs received by M/s Arora Aromatics and that the goods did not move from Jammu Kashmir to the appellants factory and therefore, Cenvat credit was not admissible. The evidence submitted by the appellant in the form of Order-in-Original passed by Commissioner of Central 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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