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2019 (6) TMI 10 - CESTAT MUMBAICENVAT credit - capital goods - pre-fabricated structure - pre-ponderance of probabilities proved - HELD THAT:- The investigation conducted by the department and the material evidences brought on record were not disputed by the appellants at any point of time, either at the adjudication or the first appeal stage. The law in this context in well settled by the Hon’ble Supreme Court in the case of D.Bhoormal [1974 (4) TMI 33 - SUPREME COURT] that the department is not required to prove a case of mathematical precision and is required to prove a case with the pre-ponderance of probabilities. The Learned Commissioner (Appeals) has thoroughly examined the case and concluded that the Cenvat demand has been correctly disallowed to the appellant. Penalty - HELD THAT:- The vehicle nos. were incorrectly entered by it in the invoices, facilitating the Appellant No.1 to avail the fraudulent Cenvat Credit. Further, it is also evident that the vehicles were not used for transportation of the subject goods for delivery at the factory of the Appellant No.1 - penalty under Rule 26 of the Central Excise Rules, 2002 upheld. Penalty on the Appellant No.2, Shri Owais Shakir Nuri, Director of Appellant No.1 company - HELD THAT:- Neither the original nor the impugned orders have specifically discussed about the role played by the said appellant in the clandestine activities indulged into by the other appellants. Thus, in absence of proper substantiation of the case, the impositions of penalty on the Appellant No.2 cannot be legally sustained. Appeal allowed in part.
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