2017 (8) TMI 892 - AT - Central Excise

Appeal allowed due to weight discrepancies in transportation of bulk cement, emphasizing minimal shortages and entitlement to credit.

The Member(Judicial) allowed the appeal, setting aside the denial of Cenvat credit to the appellant due to weight discrepancies in the transportation of ... CENVAT credit on short quantity received denied - weight variations - Held that: - shortages is to the tune of 2% and less - There is no case of the Revenue that total bulk cement cleared from the Gujarat plant was not received by the appellant at Mumbai plant as no quantity was diverted in the transit therefore it is case of only weight variations between weight shown at the time of the loading of the cement into ship from Gujarat and at the time of unloading from transportation of cement from Nhava Sheva, Mumbai - similar issue decided in the case of M/s ULTRA TECH CEMENT LTD Versus COMMISSIONER OF CENTRAL EXCISE [2014 (8) TMI 180 - CESTAT MUMBAI], where it was held that As there is no allegation of diversion or pilferage and considering the fact that in some cases weight is short and weight is excess, it is held that it occurred only due to the various method of weighment of the goods - appeal allowed - decided in favor of appellant. Issues Involved:- Denial of Cenvat credit due to variations in weight of bulk cement transported from Gujarat plant to Navi Mumbai plant.Analysis:The case involved a dispute regarding the denial of Cenvat credit by the department to the appellant due to variations in weight of bulk cement transported from the Gujarat plant to the Navi Mumbai plant. The appellant transported bulk cement through a water channel and converted it into retail packs at their Navi Mumbai plant for sale. Discrepancies were noted between the weight shown in the invoices issued for clearances from the Gujarat plant and the physical quantity received at the Navi Mumbai plant based on weighment slips. The department contended that Cenvat credit should be denied for the short quantity received.The appellant argued that the weight variations were a result of different weighing machines and asserted that there was no diversion of quantity during transportation. They highlighted that the shortages were minimal, not exceeding 2%, and pointed out cases where the quantity received was in excess, which had not been considered by the lower authority. Reference was made to a previous decision by the Tribunal in a similar case involving Ultra Tech Cement Ltd, where the Tribunal had ruled in favor of the appellant.On the other hand, the Revenue representative reiterated the findings of the impugned order, emphasizing that credit should only be allowed for the physical quantity received at the factory, and since there were instances of consignments with less quantity received than shown in the invoices, credit for the short received quantity should not be permitted.After considering the submissions from both sides and examining the record, the Member(Judicial) noted that the shortages were minimal, around 2% or less, and there was no evidence of diversion of the total bulk cement cleared from the Gujarat plant. The discrepancies in weight were attributed to variations between the loading and unloading processes, with no goods being diverted elsewhere. Referring to the Tribunal's previous decision in a similar case, the Member set aside the impugned order and allowed the appeal, stating that the issue had already been decided in the appellant's favor and was no longer res integra.In conclusion, the judgment resolved the issue of denial of Cenvat credit based on weight variations in the transportation of bulk cement, emphasizing that the discrepancies were minimal and did not involve any diversion of goods, ultimately ruling in favor of the appellant based on precedent and the principle of entitlement to credit based on supplier invoices.