9911796707
TMI Blog2024 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... PATEL VERSUS COMMISSIONER OF C.E. CUSTOMS-ANAND [ 2024 (6) TMI 842 - CESTAT AHMEDABAD] allowed the appeals by setting aside the impugned order. Since the present appeals are out of the same impugned order involving same issue and identical facts, the issue in the present case is no longer res-integra. In view of above order, it can be seen that issues in the present appeal as well as in the appeals disposed of by the above order are identical in all respect, therefore, following the ratio of the above decision, in the present case also, the demand is not sustainable. Appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Saurabh Dixit, Advocate for the Appellant Shri R.K. Agarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of various personnel of the assessee, including the Managing Director. The investigation reached to a conclusion that there was huge physical shortage of raw materials, than the recorded stock. Accordingly, four show cause notices dtd. 15.07.2014 and 23.07.2014 were issued to the M/s Anupam Industries Ltd., Unit V, Unit IV, Unit-II unit III for recovery of Cenvat Credit alongwith interest and penalty and to impose penalties on the other co-appellants. The matter was adjudicated vide common impugned order and cenvat credit demand as proposed in the show cause notice was confirmed and penalties were imposed on all the appellants. Against the said order, the appellants are before us. 1.2 Against the said common impugned order, the order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 18.06.2024 allowed the appeals by setting aside the impugned order. Since the present appeals are out of the same impugned order involving same issue and identical facts, the issue in the present case is no longer res-integra. The relevant order of this Tribunal dated 18.06.2024 is reproduced below: 4. We have heard both the sides and perused the records. Considering the fact of the present matter we find that during the course of investigation itself, the reasons for shortage has been explained by the appellant but no verification was conducted by the department to find out the actual true. We noticed that only one theft event has been detected by the appellant on 02.10.2011 and the same was reported to the local police. They internal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry 201, materials are not issued physically, however quantity and amount of such raw materials are recorded by entry 201 in SAP system to adjust the shortage or excess of raw materials. As far as SAP software program in concerned, 221 221Q is entry related to goods issued to project WBS (Work Break down Structure). 261 is entry where material is issued to production order and 261Q is entry related to goods issued to project production order. The meaning of abbreviation mentioned in the report of entry Nos. 221Q, 261 and 261Q are as same as given against the entry 201 202. The Ld. Commissioner has arrived at a conclusion that the raw material entry in said SAP system is all the raw material which is clandestinely removed by the appellant u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant clearly explained the reasons for the such shortage which were reconciled at the time of implementation of SAP system. We also find that as regards the shortages in stock detected during physical verification by the appellant itself, department nowhere produced any positive evidence that the disputed inputs found so short were disposed of in any manner other than in the manufacture of final products. The charge of clandestine removal has to be proved by the Revenue by bringing positive evidence on record and not by presumptions and assumptions. The Supreme Court has held in the judgment in the case of Oudh Sugar Mills Ltd. v. U.O.I., 1978 (2) E.L.T. (J 172) that no show cause notice or an order can be based on assumptions and presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced any documentary evidences. Further he was not given the details of invoices to which period they belong. We also notice that appellant requested the Ld. Adjudicating authority for cross-examination of witnesses which are relied upon by the department. However the said request of the appellant was rejected. Since no crossexamination of any of the persons had been granted, the alleged statements cannot at all be the basis for confirming cenvat demand. We find support form the judgments in the case of Shalimar Rubber Industries v. C.C.E., Cochin, 2002 (146) E.L.T. 248 (S.C.) wherein the Supreme Court has held that no reliance can be placed on the oral statement of a person who has not been subjected to cross-examination during adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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