9911796707
TMI Blog2004 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer cannot be based only on presumptions and assumptions. It is to be proved by concrete evidence which is lacking in the present case. Therefore, the duty demand confirmed by the adjudicating authority under this charge against the appellant company cannot be sustained and is set aside. The duty demand on the short found goods in respect of short found inputs, has not been contested before us. Therefore, the impugned order in this regard is maintained. The newly manufactured goods were cleared by the appellants on payment of duty as is evident from the evidence of Harish Chandran, Manager (Accounts) of the appellant company whose statement was recorded during investigation. The goods which were received under 57F challans were returned by the appellants after removal of defects as we find from the record. Therefore, the Cenvat credit on the rejected goods, received under duty paying documents and utilized as inputs by the appellants, could not be disallowed. The impugned order confirming duty by denying the Cenvat cannot be sustained and is set aside. Thus, part of the impugned order regarding the confirmation of duty on company appellant No. 1, is upheld, while the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods involving credit of Rs. 6,86,034/-were received by the company and that amount was recoverable. Similarly, duty of Rs. 21,501/- on short found goods and credit of Rs. 17,290/- on the short found inputs were found payable by the company. 2. After completing the investigation, show cause notice dated 3-5-2002 was issued to the appellants vide which duty demand on account of clandestine manufacture and removal of the goods, shortage of goods/inputs and wrongful availment of the Modvat credit, as detailed therein, was raised from them. The imposition of penalty was also proposed in the show cause notice. In their reply to the show cause notice, the appellants denied all the allegations. The adjudicating authority passed the impugned order. 3. The learned Counsel has contended that the demand for clandestine removal and manufacture of the goods has been raised on the basis of excess use of one of the inputs i.e. steel used in the manufacture of steering wheels and use of parallel invoices by the appellants during the period in dispute. But there is no convincing evidence to substantiate these allegations. The demand has been confirmed only by raising presumptions, assumptions wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilisation of inputs could not made ground for concluding that there had been excess use of one of the inputs by the appellants in the manufacture of steering wheels. 6. We find also from the record that steel metal is only one of the inputs utilized by the appellants in the manufacture of steering wheels. They are using many other inputs in the manufacture of said wheels, as is evident from their reply to the show cause notice and the quantity of those inputs used in each steering wheel, had been detailed by them in that reply and the correctness of the same had not been disputed by the Department. No discrepancy in the recorded balance of the finished goods as well as inputs was ever found by the officers when they took physical verification of the stock, twice i.e. on 12-5-2000 and 23-12-2000. It is only on the third visit on 7-2-2001 that inputs involving duty of only Rs. 17,290/- were found short. The production of 272085 pieces of steering wheels as alleged in the show cause notice by utilization of the alleged excess quantity of steel as one of the inputs, could not take place especially when there is no evidence on record to prove the excess receipt of other inputs, by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cleared by them from their own factory premises. But there is no concrete evidence to prove this allegation. There is nothing on record to suggest if any show cause notice was issued to M/s. PPAI along with the appellants, for manufacture and removal of goods in a clandestine manner. From the statement of representative of M/s. S.S. Spares to whom the goods were supplied, it is evident that said firm purchased the goods from M/s. PPAI and made payment through cheque. Similarly, the receipt of goods from that firm has not been denied by M/s. Chadha Autolines, the buyer. It is not the case of the department that M/s. PPAI was dummy unit created only on paper by the appellants as no charge of clubbing of the clearance of that firm with that of the appellant company, had been made in the show cause notice. 9. It is well settled that the charge of clandestine manufacture and clearance of goods against the manufacturer cannot be based only on presumptions and assumptions. It is to be proved by concrete evidence which is lacking in the present case. Therefore, the duty demand confirmed by the adjudicating authority under this charge against the appellant company cannot be sustained and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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