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TMI Blog2023 (3) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, Authorised Representative. ORDER PER: SANJIV SRIVASTAVA This appeal is directed against Order-in-Original No. 29/RKS/CEX/P-I/2012 dated 03.09.2012 passed by the Commissioner of Central Excise, Pune-I. By the impugned order, following has been held:- ORDER 21.1 I confirm the demand of Cenvat credit amounting to Rs. 61,79,285/-, which is equivalent to the Cenvat credit taken by the assessee on the inputs found short at the time of stock taking during the period from April, 2011 to December, 2011, under the provisions of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 1944. 21.2 I also order recovery of interest on the amount of demand of Cenvat credit confirmed, at para 21.1 above, under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AA ibid. 21.3 I also impose a penalty of Rs. 61,79,285/- on the assessee, i.e. M/s. Tata Motors Ltd., Spare Parts Division, Chakan, Pune, under the provisions of Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC ibid. 22. I further give an option to the assessee under the provisions of Section LIAC of Central Excise Act, 1944, to pay 25% of the penalty amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This decision is in continuation of earlier decisions in their favour which are as follows:- [2019 (7) TMI 1797 CESTAT MUMBAI] [2017 (345) ELT 653 (T)] [2017-TIOL-90-CESTAT-MUM] read with ROM order reported at [2017-TIOL-858-CESTAT-MUM] [2016 (6) TMI 568 CESTAT MUMBAI] The present show cause notice is one of the periodical show cause notices on the same issue which has been adjudicated as per impugned order. As the issue has been decided in their favour as per the above order, these proceedings need to be dropped. 3.3 Arguing for the Revenue, learned AR reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 We find that the issue is no longer res integra and has been settled in appellant s own case vide order reported at [2021 (11) TMI 830 CESTAT MUMBAI]. Tribunal in the said decision has observed as follows:- 6. We find that in the facts and circumstances of the present case the shortages and excesses if any found are theoretical due to huge quantity of inputs handling. It is not a case of the Department that the appellant have ever remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in relation to the manufacture of final products. He further submits that the extended period is not invokable in the facts of the present case and Rule 3(5B) ibid has no application in the present case. Nor Rule 11 is applicable as the said rule will come into play only when the Cenvat Credit has been taken or utilised wrongly whereas in the present matter the Cenvat credit was rightly taken on eligible inputs upon their receipt. Learned Authorised Representative on the other hand reiterated the findings recorded in the impugned order and prayed for dismissal of Appeal. According to learned Authorised Representative the appellants are liable to pay an amount equivalent to Cenvat Credit taken on inputs allegedly written off in terms of Rule 3(5B) ibid alongwith interest and penalty, as it categorically states that an amount equivalent to the Cenvat credit taken on input written off is payable by the assessee. He denied the contention of learned counsel that those parts which were not available during physical stock verification at its specified storage rack were subsequently found in another storage rack. 4. Rule 3(5B) ibid specifically provides that If the value of any input o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable in the factor whereas for the application of the said rule the goods have to be available in the factory and only a book entry is to be made to write off the value of the said goods. We are also not oblivious of the fact that on a similar set of facts in appellants own case this Tribunal in the matter of M/s. Tata Motors Ltd. Vs. CCE, Pune-1; reported in 2016-TIOL-1027-CESTAT-MUM while relying upon the law laid down by the Hon'ble Supreme Court in the matter of Maruti Suzuki India Ltd.; 2015(319) ELT 549 (SC) = 2015- TIOL-326-SC-CX decided the issue in favour of the Appellants. Similarly in another matter of Appellants i.e. Appeal No. E/172/2009 in the matter of M/s. Tata Motors Ltd. Vs. CCE ST, Jamshedpur, a coordinate Bench of the Tribunal vide Order dated 11.1.2019 = 2020-TIOL-1119-CESTAT-KOL decided the issue in favour of the appellants therein and held that the demand is not sustainable and there is no evidence on record that the inputs on which the Credit was taken, were not received in the factory or removed as such from the factory. 6. While following the decisions as cited above and in view of the facts of this case and also in view of the discussions made herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid judgments of this Tribunal which is based on the Hon'ble Supreme Court's judgment in case of Maruti Suzuki India Ltd. (supra), I am of the view that Cenvat credit cannot be disallowed in the facts and circumstances of the present case. The impugned order is set aside, appeal is allowed. (iii) Tata Motors Ltd. Vs. Commissioner of Central Excise 2016-TIOL-1027-CESTAT-MUM 4. I have gone through rival submissions. I find that the Order-in-Original clearly records that the appellants have elaborate method of accounting. There is no allegation of any mischief in the shape of clandestine clearance of receipt of raw materials. The Tribunal in case of Maruti Udyog has observed as follows: - 7. The appellants have a huge and complex accounting problem. It is beyond manual tally. The appellants have put in place sophisticated computer based accounting systems to ensure accuracy and efficiency. The evidence on record does not indicate any diversion of inputs in contravention of rules relating to utilisation of inputs. The demand is merely based on the shortages detected during physical tallying, that too without taking into account the excesses noticed. Since there is no evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem in respect of the inputs which were used while manufacturing the motor vehicles. A finding of fact is recorded that there was no clandestine of removal of any inputs. It is therefore, not a case for any interference. 4.1 I find that the case of the appellant is squarely covered by the decision of the Hon'ble Supreme Court in case of Maruti Udyog (supra). The only difference is that in case of Maruti Suzuki, value of excess found was greater than the value of shortages, whereas in the instant case the value of shortages is higher than the value of excess. In so far as the value of shortages ranging from 0.01% to 0.21% whereas the excess ranging from 0.01% to 0.08% of the total procurement of parts. I find that the Tribunal in its decision in case of Maruti Udyog Ltd. (supra) has not relied on quantum of shortages are excess, but has relied solely on minuscule percentage of shortages found. The Hon'ble Supreme Court also has relied on the percentage of shortages found. However, as an additional argument, the Hon'ble Supreme Court has observed that the fact that shortages of input was less than the excess of input found demonstrate the bona fide. 5. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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