9911796707
TMI Blog2002 (1) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 12840 Kgs. of raw material vis-a-vis, the balance recorded in the RG 23A Part-I. Shri Sanjay Kumar, who was, under authorization by the proprietor of the concern, looking after the affairs of the concern pertaining to receipt of raw materials, production and clearance of finished goods, Sales Tax, Income Tax, Central Excise duty etc., stated to the officers that, as per RG 23A Part-I, the balance quantity of HR Plate was 12840 Kgs. whereas, on physical verification, the material was not traceable. He further stated that the said quantity of HR Plate had not been issued for production. It was further stated that Modvat credit of Rs. 29,660.40 had already been taken on the said quantity of inputs on the strength of invoice issued by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this order of the adjudicating authority was rejected by the Commissioner (Appeals). Hence the present appeal. 2. I have examined the records and heard both sides. 3. Ld. advocate Sh. N.L. Jangir invites my attention to copies of relevant documents (extract of RG 23A Part-I covering the relevant period, invoice dated 15-10-97 issued by the dealer) and submits that the input found short by the officers on 23-10-97 was CR Coil correctly mentioned in the invoice and the RG 23A Part-I, and not HR Plate as mentioned in the show cause notice and the order of the original authority. He further points out that this mistake has been noted by the lower appellate authority. Ld. advocate submits that the entire quantity of 12840 Kgs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lates (instead of CR Coils) in the show-cause notice and the order of the adjudicating authority is no longer a subject of controversy in this appeal inasmuch as the lower appellate authority has noted the mistake in its order and that finding is not under challenge in the present appeal. The short question which arises for consideration is as to whether the Modvat credit of Rs. 29,660.40 taken on 12840 Kgs. of CR Coil on the strength of dealer's invoice in October 1997 by the assessee is liable to be disallowed on the ground that the said quantity of inputs was not utilized for manufacture of final products but cleared without payment of duty. Admittedly, the above quantity of inputs was received in the appellants' factory on 15-10-97. Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt's allegation that 12840 Kgs. of CR Coil were removed out of the factory without payment of duty stands admitted by the appellants. In view of this admission, it was not necessary for the Department to go in search of corroborative evidence. The Modvat credit was irregularly taken inasmuch as it was not utilized in or in relation to the process of manufacture of any final products. Thus, in terms of Rule 57A, the credit taken by the party was not admissible to them and the same has been rightly disallowed by the authorities below. 6. As regards the penalty, however, I find that a penalty of a quantum equal to the quantum of duty has been imposed on the party under Rule 173Q. One of the proposals in the show-cause notice was to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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