CX - Assessee engaged in manufacture of P.V.C Insulated wires and cables, armoured and un-armoured cables and control cables - Central Excise Officers visited the factory of assessee on the basis of information that assessee availed Cenvat Credit on the basis of invoices of input PVC Resin, issued by M/s. KPIPL, without receipt of goods - Demand confirmed alongwith interest and penalty - There is no material available on record to support the argument that assessee procured non-duty paid material from the market for manufacturing the goods - Further the investigation has not unearthed any evidence to substantiate the allegation that assessee has not received the goods covered by invoices of M/s KPIPL based on which the Cenvat Credits have been availed - The records and documents placed on record by assessee cannot be brushed aside, merely on the basis of statement of third party, i.e. transporter which are un-corroborative in nature - It is noted that in similar situation, Tribunal in case of M/s. UKB Electronics Pvt. Ltd. set aside the order of original authority in which, cenvat credit was denied on the basis of investigation at M/s. KPIPL - Present proceeding was initated on the basis of same investigation against M/s. KPIPL and the transporter - Assessee requested for cross examination of concerned persons, which was not allowed - At this stage, investigating officer should have examined the records and documents including Cenvat accounts and not merely relied on the statement of third party - Denial of cenvat credit and imposition of penalty are not justified: CESTAT - Appeal allowed: DELHI CESTAT

CX - Assessee engaged in manufacture of unbranded chewing tobacco - They calculated the exemption limit of Rs.1 crore under Notfn 8/02-CE by taking into account MRP price printed on 2 Kg and 5 kg packs and claimed abatement of 50% of MRP under Notfn 13/02-(NT) - Revenue found that assessee had been packing and selling their product in 2 kg and 5 kg packings and clearing the same after putting in cardboard cartons and gunny bags which were claimed to be retail sale packing but were not meant for sale to ultimate consumers but to certain buyers for their industrial use or to the Panwalas for making of Pans for sale in smaller quantities - Commissioner (A) has examined entire issue on the presumption that 2 kg and 5 kg cartons are supplied to gutka manufacturers or to the Panwala through intermediary in wholesale packages - He observed that the sale also does not appear to be intended for sale in retail as package was only sold to industrial user - Adjudicating authority has also proceeded on the basis that goods are sold to gutka manufacturers for manufacturer of gutka and packages are supplied as wholesales packages - However, in SCN, allegation is that the packing of 2 kg and 5 kg was intended for bulk sale to certain buyers for their industrial use or to panwala for use in making of pan and for selling smaller quantity to its consumers - In their reply to SCN, assessee have categorically denied that the packages are sold to gutka manufacturers - However, both the lower authorities have examined the matter from that premise - In view of disputed fact, it is necessary for lower authorities to verify the facts afresh in first instance to establish clear factual matrix - Accordingly, matter remanded: CESTAT - Matter remanded: CHANDIGARH CESTAT

CX - Assessee engaged in manufacture of automobile parts - They are also manufacturing dies which were sent to the job workers without payment of duty on the premise that these dies were used by them captively for manufacture of their final products and availed exemption under Notfn 67/95-CE - During investigation, it was found that as these dies manufactured by assessee are required to be cleared on payment of duty as the same have not used in their factory but cleared to the job workers without payment of duty, SCN was issued to assessee - Member (J) hold that it is case of Revenue neutrality as whatever duty they had paid on the dies, immediately they were entitled to take Cenvat credit of the same - If that being the situation, in that circumstance, as per Rule 4 (5) (b) of Rules Cenvat credit has been taken by assessee on these dies, assessee is not required to reverse the credit as the same are cleared to the job workers for further manufacture of goods - Therefore, provisions of Rule 4(5) (b) of Cenvat Credit Rules are applicable.

On the other hand Member (T) has taken different view and held that since the impugned goods were not used for captive consumption within the factory of assessee, they have violated the substantive condition of notification and mis-used the same - Revenue neutrality is the only ground for non payment of duty, the same cannot be justified for irregular availment of notification - If such an argument is accepted, it would lead any manufacturer to avail the benefit of a notification and, after being caught, would take the ground of Revenue neutrality as the buyer would have availed Cenvat credit - Such an approach would open floodgate for misuse of exemption notifications - Hence, the plea of revenue neutrality is not tenable after irregular availment of a notification especially when credit is not available to assessee himself and the provisions of Rule 4(5) (a)/ (b) of the Rules are not applicable.

As there is divergent views of Members of Tribunal, therefore the matter may be placed before the President to appoint third Member: CESTAT - Case deferred: CHANDIGARH CESTAT