2008 (7) TMI 199

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....he respondents challenging the order passed toy the Commissioner of Central Excise dt. 30th January 2002 in order No. 1/2002. 3. We have heard the learned counsel for the parties. 4. The facts of the case are as hereunder: The Commissioner of Central Excise, Bangalore issued a show-cause notice to the respondents on 2-3-2001 stating that the respondent  M/s. Rishi Polymach Private Limited by contravening the provisions of Rules 57A(4) and 57G(3) of the Central Excise Rules, 1944 and by availing Modvat credit on the inputs which were not received and were not utilised in the manufacture of their final products through wilful misstatement and with a Fraudulent intention to evade payment of duty, respondent-Company has availed an ineli....

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.... and diverted the goods invoiced, the appellant has to prove the same by producing cogent evidence. It further held that the goods supplied by M/s. MCCPL had not reached the appellant-factory and it is for the Revenue to investigate to find out whether the goods have been diverted and further held that when the Revenue holds that the respondent has used inferior grades then it is for the appellant to prove the source of such inferior grades of HDPE granules. Accordingly, the appeal was allowed. Challenging the same, the present appeal is filed by the Revenue. 6. According to the learned counsel for the Revenue, the Tribunal has misdirected itself in placing the burden of proof on the appellant. According to him, when the balance sheet of t....

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....tary balance sheet has been issued by the auditors of the respondents for a period of four years, which would show that the balance sheet maintained by the respondent was not proper. The Tribunal without considering the same, mainly relying upon the supplementary balance sheet has allowed the appeal. Whether such a mistake could be crept in continuously for the period of four years in the balance sheet of the respondent-company. This fact has to be explained properly by the respondent. 10. Without assigning any reason, the Tribunal has accepted the supplementary balance sheet, which according to us, the Tribunal has committed a grave error in allowing the appeal by accepting the supplementary balance sheet. 11. When the supplementary bala....