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2010 (2) TMI 606 - AT - Central ExciseCenvat credit - wrong availment of Cenvat credit - without receiving the goods and paid the duty before issuance of the show cause notice - appellants are given an option of the reduce penalty to Rs. 25% of the duty confirmed giving the benefit of proviso to Section 11AC if the appellant pays the same within 30 days of the communication of this order - only contention of the appellant is that the appellant has not dealt physically with the impugned goods and in that situation no penalty under Rules 26 of the Central Excise Rules, 2002 can be imposed on the appellant and there is no allegation against the appellant the only allegation against the appellant company only - officer to issue the show cause notice and adjudicated the goods was not having any jurisdiction and there is no finding about the liability of confiscation of the goods and moreover that the submission of the appellant is that they sold the scrap on ex-factory basis and delivered to the purchasers at the factory gate on payment of duty in that event the appellants are not liable for any penalty – Held that: - appellant has sold the goods through online process and on ex-factory basis and on ex-factory basis and delivered the goods to the purchasers at factory gate on payment of duty - goods against this invoices were never moved - vehicle number entered in the invoices were NOT correct and the statement of truck owner that the vehicle mentioned in the invoices never entered in the factory premises of the appellant and the statement of the truck owner was not contravorted by the appellant - duty of the supplier of goods to enter the correct number of vehicles in their invoice while clearing the goods and in this case the vehicles which are mentioned in the invoice did not carry the goods at the time of clearance - appellant cannot escape from the liability of penalty.
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