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2010 (12) TMI 70 - GUJARAT HIGH COURTPenalty – Wrong availment - non existent/fake/bogus credit – Held that: - On a plain reading of rule 13 (2) of Cenvat Credit Rules, 2002, it is apparent that the same can be invoked in a case, where the CENVAT credit has been taken or utilized wrongly on account of fraud, willful mis-statement, collusion or suppression of facts, or contravention of any of the provisions of the Act or the rules made thereunder with intention to evade payment of duty, in which case the manufacturer would be liable to pay penalty in terms of section 11AC of the Act. Thus, a condition precedent for invoking the provisions of sub-rule (2) of rule 13 of the Rules there should be a finding to the effect that the manufacturer has taken or wrongly utilized the CENVAT credit on account of fraud, willful mis-statement, collusion or suppression of facts, or contravention of any of the provisions of the Act or the rules made thereunder with intention to evade payment of duty. evidence in record is not sufficient to conclude that the assessee is a party to the fraud. It has also been recorded that the findings of the Adjudicating Authority that there is suppression of facts with intent to avail wrong credit is based on conjectures and surmise and not on solid evidence. On behalf of the revenue, nothing has been pointed out to dislodge the concurrent findings of fact recorded by both the appellate authorities. In the light of the aforesaid concurrent findings of fact recorded by both, the Commissioner [Appeals] as well as the Tribunal, it is apparent that the conditions precedent for invoking the provisions of rule 13 (2) of the Rules are clearly not satisfied
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