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TMI Blog2024 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... and paid the duty on the goods manufactured by them. Consequently, the cenvat credit can t be denied to the recipient of goods located in the State of U.P i.e. M/s Sangam Aromatics. We also held that the allegations against the appellants are based on assumption presumption which is not sustainable. In view of above, no penalty is imposable on the appellants.' The impugned order is not sustainable in law and is liable to be set aside - Appeal allowed. - SH. S. S. GARG, MEMBER (JUDICIAL) AND SH. P. ANJANI KUMAR, MEMBER (TECHNICAL) Sh. R. M. Saxena, Advocate for the Appellant Sh. Harish Kapoor, Authorized Representative for the Respondent ORDER The present appeal is directed against the impugned order dated 13.05.2016 passed by the Commissioner of Central Excise, Chandigarh-II, whereby the ld. Commissioner has confirmed the demand of Rs.42,54,588/- along with interest and penalty. 2.1 Briefly stated facts of the present case are that the appellant was registered with the Central Excise department and was engaged in the manufacture of menthol and De-mentholised Oil ( DMO for short) since 23.06.2005 at Plot No. 56, SICOP Industrial Complex, Birpur, Bari Brahmana, Jammu. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28.09.2005 had confirmed, after verification, that the appellant's unit had started its commercial production on 23.06.2005; the appellant had installed new plant machinery; and had permitted power load of 30 H.P. The Range Officer had also confirmed that the appellant had cleared goods valued at Rs.37,51,450/- on payment of duty and education cess of Rs.6,12,237/- during the previous month. He submits that this fact disproves the allegation in the impugned SCN and findings in the impugned order that the appellant did not manufacture any goods during the period of dispute. 4.3 He further submits that during the entire period of operation of the appellant's unit, i.e. 23.06.2005 to 31.03.2008, jurisdictional Central Excise officers regularly visited appellant's unit and checked production of excisable goods by the appellant. Officers of the District Industry Centre of Jammu had also been visiting appellant's unit for verifying inter-state import of raw material and inter-state export of appellant's finished goods for grant of exemption from Toll Tax. Central Excise Internal Audit team had conducted audit in the appellant's unit on 18.02.2008 for the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 5 years. The appellant had been filing ER-1 returns during the period of dispute. 4.8 He also submits that this issue is no more res integra as the appeals of M/s Sangam Aromatics, Maa Durga Industries, M/s Aar Bee Industries and M/s Narbada Industries, arising out of the same investigation as in the case of the appellant, have been allowed by this Tribunal in favour of the assessees vide Final Order No. 60498-60506/2019 dated 03.04.2019 and the department has accepted this order of the Tribunal and refund claims have been sanctioned to the assessees. Copies of the refund sanction orders are also on record. 4.9 The ld. Counsel, in support of his above submissions, relies on the following cases: Sangam Aromatics others vs. CCE ST, Chandigarh - Final Order No. 60498-60506/2019 dated 03.04.2019 (Tri. Chandigarh) Rohit Aggarwal, Akash Traders and S.B. Aromatics vs. CCE ST - 2018 (11) TMI 830 - CESTAT CHANDIGARH G. Tech Industries, Shiva Mint Industries, Fine Aromatics, Ambika International, Jay Ambey Aromatics vs. CCE, Chandigarh - Final Order No. 63602-63606/2018 in Appeal Nos. E/61558, 61567-61570/2018 (Tri. Chandigarh) Nanda Mint Pine Chemicals Ltd. vs. CCE, Chandigarh-II - Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be held that the Jammu based manufacturer were not manufacturer during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the movements of raw material and finished goods. We further take note of the fact that the during the period of investigation itself, the Jammu based manufacturer were allowed continue their activity by procuring inputs from UP based supplier and selling goods manufacturing to their buyer/appellant. During the course of investigation, itself shows that the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants were not manufactured the goods during the impugned period. Moreover, as per the report of Jurisdictional Commissioner to Chief Commissioner dated 21.05.2010 reveals as under: 5. Thus the officers of Meerut-II Commissionerate, instead of selecting the consignments where no excisable goods were manufactured/supplied, have generalized that all the purchases of crude Mentha oil by these Mentha units located at Jammu were bogus units, these units did not have any infrastructure to manufacture the said products, were nonfunctional and Transporters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed goods have never entered or left in the state of Jammu Kashmir, therefore, the allegation on the basis of the investigation conducted by the Commissioner of Central Excise, Meerut is not sustainable. 8. Further, we take note of the fact that during the period of investigation itself, the appellant continued their activity by procuring inputs from U.P and selling the goods after manufacturing to the U.P based buyers and the Department allowed to continue the same during the course of investigation which shows that the allegation on the basis of investigation conducted at the end of Commissioner of Central Excise, Meerut is not sustainable that the appellant is not manufacturer the goods. Admittedly, duty is payable on the manufacture of goods and as per the report of the Commissioner of Central Excise, Jammu dated 25.02.2010, it has been revealed as under: 5. Thus the officers of Meerut-II Commissionerate, instead of selecting the consignments where no excisable goods were manufactured/supplied, have generalized that all the purchases of crude Mentha oil by these Mentha units located at Jammu were bogus units, these units did not have any infrastructure to manufacture the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the rival contentions and on perusal of the facts on record, we find that the basic 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucting any investigation at the end of the appellant, therefore, on the basis of evidences available on record, we hold that the appellant were manufacturing unit in the state of Jammu Kashmir is entitled for benefit of the exemption Notification No. 56/2002-CE dated 14.11.2002 and claimed the refund of duty paid through PLA. In view of this, we set aside the impugned order and allow the appeal with consequential relief if any. 12 . We also take a note of the fact that in the case of M/s Narbada Industries as well as M/s Aar Bee Industries, this Tribunal has entertained the issue and held that they are Jammu based manufacturer of the goods in question, therefore, they have rightly paid the duty and consequently the appellant M/s Sangam Aromatics is entitled to avail cenvat credit on the goods cleared by the Jammu based manufacturer. 13 . In view of the above analysis, we hold that the Jammu based manufacturer were manufacturer during the impugned period and paid the duty on the goods manufactured by them. Consequently, the cenvat credit can t be denied to the recipient of goods located in the State of U.P i.e. M/s Sangam Aromatics. We also held that the allegations against the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the goods they manufactured and on which they paid duty and which were exported, if they had been received the inputs from M/s Ruchi Infotech 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 Orders-in-Original dated 29/01/2010 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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