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2013 (3) TMI 604 - AT - Central ExciseAvailment of wrongful credit - Bogus invoices - Issue of invoices without actual receipt of goods - Invocation of extended period of limitation - Imposition of penalty - Held that:- During the search of the supplier’s office and godown viz. M/s. ISC, it was found that as per the records a large quantity of closing stock of SS Bright Bars was available but in the godown no such SS Bright bars were found. The explanation given by Shri Arifbhai Adhiya Proprietor of M/s. ISC was that such bright bars has been sold without Cenvat/modvat. However, no commercial invoice issued by M/s. ISC was also found. - M/s. ISC used to deal in different variety of scrap including assorted mixed scrap. We also note, conduct of M/s. ISC with reference to the bogus Invoices of ship breaking scrap through Simandhar Steel Movers (India) Pvt. Ltd. and also invoices relating to closed down ship breaking units. - M/s. Miland Tijare and other officials of the appellant have stated that in heterogeneous consignments higher number samples are required while in homogenous, very few samples would be tested. From the records of the Lab, the Officers could not find any case where only one or two sample were tested. One or two samples should have been the case in respect of Invoices relating to S.S. Rods/pipes/bright bars, etc. We note that appellant has chosen to keep silent on this allegation in the show cause notice. - goods covered by the impugned invoices have not been received in the factory of manufacturer - Such a thing cannot happen without active connivance of appellant and undoubtedly is a case of fraudulent availment of credit. We therefore reject this contention of the appellant and hold that extended period is rightly invoked. Sub-rule (1) of Rule 13 is applicable to any person while sub-rule (2) of Rule 13 which is applicable to manufacturer alone. The term any person would include appellant Shri Deepak W. Ashtikar, who was a senior officer of M/s. FACOR and responsible for the purchase of scrap and therefore, dealt with the scrap. He has admitted that sometime scrap received may be different that in the invoice. As a senior officer in the organization, such a thing can be permitted by him only if he has active connivance in the fraud. We therefore, do not find any merit in the contention of ld. Advocate to appellant Shri Deepak Ashtikar that “mens rea” is absent. Case here is that goods covered by the invoice never reached the factory. In the circumstances, we hold that appellant is liable to penalty under Rule 13 of the Cenvat Credit Rules, 2001/2002. Investigations have failed to reveal that the third appellant was aware of the wrong doings in the purchase and conniving with the first appellant or supplier of the scrap. Investigations have not brought out that difference in invoices/final settlement was huge as to justify their knowledge. - Decided partly in favour of assessee.
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