AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 530
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....uts on the following grounds: Description Credit in (Rs.) Physically short found 2100 Kgs of Arsenic Metal 20195 Physically short found 1693475 Kgs of Lead concentrate 5232213 Physically short found 214350 Kgs of Zinc concentrate 882485 Inputs not received on 18 invoices from Kathua 3547178 Credit taken on 9 self invoices where goods not returned 1108524 Credit taken without receipt of inputs from M/s. Chem Colour (I) Pvt. Ltd. 66442 Credit taken on invoice No.201 dt. 31.3.2008 233604 Total Credit wrongly availed 11090641 The appellants have also reversed credit of Rs. 35,47,178/- in respect of S.No.(iv) and also Rs. 20,195/- in respect of S.No.(i). Other two major demands of Rs. 52,32,213/- and Rs. 8,82,485/- are in respect of S.No.(ii) and (iii) which are relatable to shortage of inputs detected by the officers at the time of their visit to the factory on 18.1.2011. Detailing his argument in respect of said two items, ld. Advocate submits that the appellant's factory is operating from A-203, Indraprasth Industrial Area, Kota. At the time of the visit of the officers, they were informed that their finished goods are lying in the adjacent plot, which ....
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....in respect of short found stock. As such, he submits that the appellant should be put to some terms of deposit. 5. After considering the submissions made by both sides, we find that the appellants have already deposited an amount of Rs. 35.67 lakhs. As regard balance amount, we find that the appellants wrote a letter to the Commissioner immediately on the next day of visit of the officers detailing each and every facts. The contention of the ld. DR that the said fact is not reflected in the panchnama drawn on the spot cannot be appreciated inasmuch as drawing of the panchnama is in the hands of the visiting officers. If the visiting officers refuse to take into consideration the stock lying in immediate next premises, the appellant is in a helpless situation. Only remedy available to the assessee is to bring the matter to the notice of the higher officers as soon as possible, which they have adopted immediately. In such a scenario, we find that the main reason for denial of the credit by the Commissioner is also on the ground that said adjacent plot was not registered with the central excise authorities and as such stock lying there cannot be taken into account. 6. We find that t....
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....benefit of credit. Otherwise also an assessee who has entered the stock of inputs in their RG-23A register is bound to show the use of the same in the manufacture of the final products. As such, at this prima facie stage, we are of the view that the appellants have been able to make out a case in their favour in respect of the said two demands. As such, by treating the deposit of Rs. 35.67 lakhs as sufficient for the purpose of section 35F, we dispense with the condition of pre-deposit of balance amount of duty and entire amount of penalties imposed on all the appellants. All the stay petitions are disposed of in the above manner. (Pronounced in the open court) Per: Manmohan Singh: 10. I have gone through the draft order recorded by learned Member (Judicial). Duty of Rs. 1,10,90,641/- was payable by Order-in-Original No.24/2013(CE) dated 22.3.2013 passed by Commissioner. On consideration that a payment of Rs. 35,67,473/- has already been made reversing credit during investigation, learned member waived requirement of pre-deposit of remaining confirmed duty of Rs. 75,23,268/- and penalty of Rs. 1,12,90,641/- + Rs. 2,00,000/- till disposal of the appeal. But I differ with the conc....
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....o submitted some documents to prove that the said portion of land was also allotted to them. They have contended that they had requested he visiting officers to take stock of the goods lying in that portion of land. I observe that no such request is available on the papers like panchnama or statement recorded on spot. The noticee, though sent a letter to the Additional Commissioner, Central Excise Jaipur which was received on 25.01.2011 and informed that the stock was lying in that plot. However, the verification got done from the Jurisdictional Assistant Commissioner of Central Excise on the basis of the said letter revealed that the adjacent premises claimed to be a part of registered premises of the noticee was not a part of the registered premises of M/s. Mittal Pigments Pvt. Ltd., Plot No. A-203 Indra Prasth Industrial Area, Kota and they never intimated to the Central Excise Range / Division Kota regarding incorporation of any additional land of plot No.A-203 in their Central Excise Registration Certificate. It is also seen that this claim of the noticee is contrary to their own declaration made to the jurisdictional Assistant Commissioner of Central Excise vide their letter ....
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.... examination of these documents it is observed that in respect of Invoices No.271 dated 21.8.2009, 293 dated 29.8.2009, 726 & 727 both dated 2.2.2010 and 31 dated 19.4.2010, the noticee have submitted copies of the GRs which prove that the goods were returned to them as such, therefore Cenvat Credit in respect of these invoices should not be denied to them. With respect to invoice No.103 dated 8.6.2009, the copy of GR submitted is for the goods originally sent from the factory premises. With respect to invoice no.273 dated 22.8.2009, the quantity mentioned in the GR is overwritten and in respect of invoice No.55 dated 4.5.2010, the quantity mentioned in the GR is not tallying with the quantity of invoice. As regards other invoices no such copies of GRs have been produced by the noticee to substantiate their claim. Since the vouchers submitted by the noticee were prepared by them and no other documentary proof such as copies of GRs, challans etc. are enclosed with them therefore the same cannot be accepted as evidence to prove their claim that the goods were returned to their factory. 16. Reading of the above Para of the adjudication order shows that Appellants have taken credit of....
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....was brushed aside in the order recorded by the learned Judicial Member. 18. Factual matrix of the case clearly indicated that appellants were involved in fraudulent activities of issuing fake gate passes and passing of illegal credit. Investigations revealed their ill design to defraud the revenue. Consequently they reversed the illegally taken credit of Rs. 35,47,178/-. Subsequent events of detection of abnormal shortages of raw materials valued at almost Rs. 4 crores have fortified the mischief of the appellants. There is no force in the contention of the appellant that raw materials on which credit has taken were lying in the adjoining premise in absence of such plea before investigating authority nor any evidence led before that authority. 19. It is basic principal of law that Cenvat credit is available only on that quantity of raw materials which are received in factory premises and are to be used in the manufacture of finished goods in the factory. Actually quantities found short were of substantial in volumes/weight. Shortage of zinc concentrate weighing 214350 Kg valued at Rs. 59,92,420/- and shortage of lead concentrate weighing 1693475 Kg valued at Rs. 3,55,28,760/- wer....