2018 (8) TMI 784 – CESTAT ALLAHABAD – TMI – Clandestine removal – MS bars – Revenue entertained a view that the higher figures reflected in ER-4 return is the correct clearance from the appellant’s factory and the difference has been cleared without payment of duty, in a clandestine manner – Held that:- Apart from the said difference, there is virtually no other evidence on record to show any clandestine manufacture and removal of the goods. Even if the assessee’s explanation is not accepted it has to be appreciated that both the figures stand given in the two returns by the appellants themselves. The charges of clandestine removal are required to be produced by the Revenue and onus is heavily placed upon them. No efforts stand made by the Revenue to further investigate the matter and collect evidence of any clandestine activities – demand set aside.
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CENVAT Credit – duty paying invoices – credit availed on the basis of photocopies of the invoices issued by the input supplier – H
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engaged in the manufacture of MS bars, on the allegations and findings of clandestine activities. 2. Out of the said demand, duty of ₹ 20,30,646/-(Rupees Twenty Lakhs Thirty Thousand Six Hundred and Forty Six only) stands confirmed against the appellant by comparing the figure of clearances as reflected by them in their ER-1 records and as shown in ER-4 returns for the period 2010-11. Inasmuch as there is a difference in the clearance figures shown by the appellant themselves in the said two returns, Revenue entertained a view that the higher figures reflected in ER-4 return is the correct clearance from the appellant s factory and the difference has been cleared without payment of duty, in a clandestine manner. Though the appellant explained that ER-4 returns stand filed by them on the basis of their balance sheets, which includes sales from various branches as also some other activities of the assessee and ER-1 figures are the correct figures, the lower authorities have not ac
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them the benefit of Cenvat credit of duty on the ground that the same stands availed on the basis of photocopies of the invoices issued by the input supplier. As explained by the ld.Advocate input supplier as also the appellant are falling under the same division and the input supplier have got the photocopies of the invoices certified by their range Inspector to the effect that the said inputs stand cleared by the manufacturer on payment of duty. In addition, the returns filed by the said manufacturer as also the challans issued by them stand produced. In such a scenario, denial of credit on a hyper-technical ground, in the absence of any allegation of non-receipt of goods by the assessee, is not called for. Accordingly that part of the impugned order is also set aside. In view of the above, the impugned orders are set aside and the appeal is allowed in toto. (Dictated and pronounced in the open Court.) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanage
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