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TMI Blog2002 (5) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ght, recorded on the B.P.T. weighbridge at the Docks, when they removed the goods from the Docks to their factory premises. They avail Modvat input, credit, of the CVD paid on the scrap, as per the quality recorded at the B.P.T. weighbridge. 2. During the period 1-10-1988 to 30-6-1993 they procured imported scrap. While the goods on the trucks, entered the factory premises, they verified and recorded the receipt on the factory weighbridge. If the weight of scrap so received, was less when the factory weighbridge record was compared to the B.P.T. weighbridge Record, then for the quantity so short receive the truck transporter was penalised and recoveries of amount for the shortages made from them. This differences in the weight recorded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of Revenue is against the finding by the Commissioner, that there was no intention on the part of the assessee to deliberately defraud revenue, hence no penalty was called for. 5. We have heard both sides and considered the submissions and find - (a) It is an admitted fact that a quantity of 4280.368 Tones out of a quantity of 614499.473 Tones of Scrap imported by appellants is not received in the factory. Modvat credit thereon was availed. (b) The plea of the appellant that the difference in the weight recorded are due to mechanical efficiency, accuracy and calibration of the two weighbridges and marginal spillage during the transport is known phenomenal in the transport of such goods and they are relying on the following deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /mismatch in two weighing scales and seeking the benefit of credit on goods not reached, they are on the other hand not granting the same said benefit, to the poor truck Drivers and other hand are considering the quantity to be lost by diversion/negligence, and a reason to recover penal costs from the transporters as during the course of hearing. As from question from the bench, the learned Advocate for the manufacturer fairly concedes that the truck transporter were being denied their legitimate transport charges and were also penalised, after shortages, as compared to B.P.T. weighment, were noticed when goods were re-weighed at the weighbridge inside the factory. Though this penalty was not recovered in such cases where the differences we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rely on the same for his commercial practices. (b) The learned advocate for the applellants very strongly urged proposition that the use in relation to manufacturer should be considered to have originated at the B.P.T. Weighbridge in the Mumbai Docks for the said imported inputs. Therefore the said inputs, even if they don't reach the factory, should be considered to be used in relation to the manufacture of the final end products. We find no reason to extend and enlarge the scope of the definition of the word 'factory' under the Central Excise Act, 1944 to a weighbridge in the B.P.T. Dock area. No doubt, the word 'factory' under Section 2(e) reads as follows : "factory" means any premises, including the precincts thereof, wherein or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture, then in those situations e.g. Rule 57J, the rules themselves provide for the eligibility and availment of credit without physically receiving the inputs goods in the factory. The rules do not cover 'inputs not physically received in the factory' in the circumstances herein. The denial of Modvat credit, on such goods, which have not been physically received has to be upheld. We therefore find no infirmity in the order of the learned Commissioner in ordering recovery of the duty credit on 4280.368 MT of scrap which is admittedly not received physically in the factory premises. (d) We find no merits in the appeals filed by the manufacturer and would consequently dismiss the same. (e) The advocate for the manufacturer submitted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his agent, the provisions of this sub-section shall have effect, for the words "six months", the words "five years" were substituted.' therefore the following phrases - "contravention of any of the provisions of this Act or of the rules made thereunder, with intent to evade payment of duty." are found markedly to be absent in Rule 57-I proviso. Hence, an intention to avail inadmissible credit, was not relevant to invoke the proviso under Rule 57-I, All that was required to be seen, was, whether the credit taken was on account of wilful mis-statement, collusion or suppression of fact. In this case, there has been a suppression of fact of non-declaration, of the factory gate weighment, to the concerned proper officers of Central Excise, cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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