TMI Blog2010 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... b-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 recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient to arrive at the conclusion of suppression of facts/fraud or mis-declaration? (C) Whether in the facts and the circumstances of the case, the Ld. Tribunal is justified in the eye of law in confirming and upholding the reduction of the mandatory penalty to almost 25% of the amount equal to the wrongly availed the Cenvat Credit imposed upon the said unit by the adjudicating authority under Rule 15 (2) of the CENVAT Credit Rules, 2004 read with section 11 AC of the Central Excise Act, 1944, which runs contrary to the judgment of the Hon'ble Apex Court in the case of Union of India Vs. Dharmendra Textile Processors [2008 (231) ELT 3 (SC)]? (D) Whether in the facts and the circumstances of the case, the Ld. Tribunal is justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Standing Counsel for the appellant has reiterated the reasoning adopted by the Adjudicating Authority. 4. On a perusal of the order made by the Commissioner [Appeals], it appears that upon appreciating the evidence on record and considering the submissions advanced on behalf of the respective parties, he has recorded a finding of fact to the effect that by failing to verify the writer of the invoices, by its acts and omissions, the assessee had facilitated the fraud. However, the evidence is not sufficient to conclude that the assessee was a party to the fraud. The Commissioner (Appeals) further noted that no investigations had been carried out to bring out that the assessee was party to fraud or that the Cenvat Credit had been availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed or Cenvat credit in contravention of the Rules with intention to evade central excise duty. Based upon the aforesaid finding of fact, the Tribunal has held that the assessee would be liable to penalty under rule 13 (1) of the Cenvat Credit Rules, 2002 and not under section Rule 13 (2) of the Rules. 7. In the background of the aforesaid facts it may be germane to refer to the provisions of Rule 13 of the Cenvat Credit Rules, 2002 which reads thus: Rule 13.Confiscation and penalty.- (1) If any person, takes CENVAT credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Examining the facts of the present case in the light of the aforesaid statutory provision, both the Commissioner (Appeals) as well as the Tribunal have recorded concurrent findings of fact to the effect that 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 ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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