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2010 (4) TMI 943 - AT - Central ExciseCENVAT credit - aluminium wire rods and wire bars - Clandestine removal - fake invoices - receipt of invoices without actual receipt of inputs - Held that: - the appellants never received wire rods and bars in their factory is based on the law of evidence. Once the Revenue produces sufficient evidence which would lead an ordinary prudent man to conclude that the evidence led by the department prima facie shows the goods have not been received, the onus of proving that the goods have been received shifts to the person who claims to have received the same - Except denying what has been stated in the show cause notice, appellants have not led any positive evidence which is possible in this case to show that they have actually received aluminium wire rods/bars - credit not allowed. Demand - extrusions - Extrusion becoming scrap before reaching RG-1 stage have not been accounted - Held that: - the fact that the department has not produced any evidence to show that such goods have been removed or sold does not in any way affect the demand for Central Excise duty on the goods manufactured. Further this is not a case of mere shortage/excess of stock but Department has conducted investigation to prove the excess production - the onus has shifted to the appellants to show that they had accounted for all the goods produced in the RG-1 register. Central Excise duty is leviable on the manufacture. The taxable event is manufacture and not removal or sales - demand upheld. CENVAT credit - aluminium ingots - Held that: - Once again the onus of proving that they have accounted for all the goods produced, shifts to the appellants and they have failed to discharge this burden. They want the department to show challanwise details of goods transported or not transported. There are several decisions of Hon’ble Supreme Court and High Courts wherein it has been held that in such clandestine activities, only the person who indulges in such activities knows all the details and it would not be possible for any investigating officer to unearth all the evidences required and prove with mathematical precision - demand upheld. Penalty on partner of company - Held that: - he himself admitted that he was aware of clandestine removal and also non-accountal of full production made in the factory. Under these circumstances, he has been rightly penalized by the Commissioner. Therefore the penalty on Shri P.N. Shah has to be upheld. Penalty on firm - Held that: - the benefit of payment of 25% of the duty as penalty under Section 11AC subject to the payment of duty demanded with interest thereon and penalty to the extent of 25% within thirteen days is made by the appellant firm has to be extended. Appeal dismissed - decided against assessee.
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