TaxTMI 
TaxTMI 
2018 (12) TMI 1029
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.....01.2016 was served upon the appellant Company M/s Baldev Alloys Pvt. Ltd. on the basis of the intelligence gathered by the Department that the Company is engaged in procurement of unaccounted raw materials as well as clandestine manufacturing and removal of the finished goods/ MS billets. Following recoveries from assesse were proposed: (i) Central Excise duty of Rs. 25,52,486/- on the alleged quantities; removal of finished goods of 223.657 mt of sponge iron with the proposal of appropriating the said amount of Central Excise duty already paid through their cenvat ledger entry dated 14.12.2013 to be appropriated. (ii) An amount of Rs. 8,43,764/- equal to the proportionate cenvat credit involved in the quantities clandestine removal of i....
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....ile submitting on behalf of the appellant Ld. Counsel has conceded for the confirmation of the total amount of Central Excise duty i.e. of Rs. 33,96,250/- (25,52,486 + 8,43,764) and that the same has already been paid. The Appeal has mainly been confined qua disallowing the availment of cenvat credit involved on short received quantity of 16887.830 mt of coal and the penalties imposed upon the Company and both the Directors thereof that though the Central Excise duty has not been contested here and has already been deposited but the fact remains is that the clandestine removal of the final product has been alleged merely on the basis of shortages detected at the time of visit of the officers and by observing that the fact of clandestine rem....
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....reof. However, with respect of Directors, it is submitted that since no mensrea to evade duty is apparent on record, the penalty imposed upon them is also liable to be set aside. Appeal is prayed to be disposed of accordingly. 5. Ld. DR while rebutting these arguments has submitted that Commissioner(Appeals) has confirmed the Order of original adjudicating authority relying upon the entire evidence on record including the statements of various person recorded. Above all, the duty liability to the extent of Rs. 33,96,250/- was accepted by the appellant themselves. The same has rightly been confirmed. Similarly, the cenvat credit has also been rightly denied for non observance of appropriate procedure of sending of inputs to the job workers ....
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.... the cenvat credit holding that the entire raw material has not been used in the final product as some part thereof being lost. The cenvat credit availment to the extent of loss has been denied. I observed that Department has conceded that had the washing process been undertaken by the appellant in its own factory, the entire credit would be available. Accordingly, I am of the opinion that denial of credit on raw coal is unjustifiable even in view of Rule 14 of CCR, 2004. I draw my support from the decision of this Tribunal in the case of Lefarge India Ltd. Vs. C.C.E. Bilaspur 2017 (48) STR 466 (Tri.-Del.) wherein it was held that when the aseesse has taken credit of service tax paid by the washeries, the same would be available as credit t....
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....landestine removal are serious. 8. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon'ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India - 2014 (309) ELT 411 (All.) as also Tribunal's decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I - 2016 (335) ELT 297 (Tri.-Del.), CCE & ST, Raipur Vs. P.D. Industries Pvt. Ltd. - 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana Vs. Anand Founders & Engineers - 2016 (331) ELT 340 (P&H). It stand held in all these judgements that the findings of clandestine removal ....
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....ise also it was not invoked in the SCN. It is the settled law that the Department is not allowed to go beyond the SCN. In this reason also reversal to the cenvat credit availment is not sustainable. I draw my support from the decision of Apex Court in the case CCE, Bangalore Vs. Brindavan Beverages Pvt. Ltd. 2007(2013) ELT 487 (S.C.). It was held that SCN is foundation on which the Department has to build up its case. If the allegations in the SCN are not specific it will be sufficient to hold that the assesse was not given appropriate opportunity. In a prior adjudication of Supreme Court in the case C.C.E. Customs Mumbai Vs. Toyota Engineering India Ltd. 2006(201) ELT 513 has held that the grounds which do not find mention in SCN Departmen....