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2010 (9) TMI 614 - AT - Central ExciseCenvat credit - Inputs - Goods namely plates/hot strip plates, channel & angle/Plate, shape & section/joist, M.S. bar and H.R. coil - The authorities have arrived at concurrent findings about the utilization of the items in question for the purpose of fabrication of structures in the factory of the appellants. At the same time, it is also equally true that the appellants in response to the show cause notice had taken the specific defence that various items were also used for making pipelines and other equipment like storage tank, in support of the contention that the appellants were entitled to avail cenvat credit in relation to the duty paid on such items - Mere raising of plea in answer to the show cause notice does not by itself mean the proof of correctness of such plea - When the plea relates to certain factual aspect, it is absolutely necessary for the person raising such plea to make the same good by producing sufficient evidence in support of such plea - The appellants did produce the photograph of various items in that regard - Mere production of photographs do not amount to proof in support of such plea - Decided against of assessee. Penalty - Appellants however justified in contending that in view of divergent views expressed by different Benches of the Tribunal there was no justification for imposition of penalty - Certainly, therefore, the intention to evade the payment of the revenue cannot be drawn from the materials on record in the facts and circumstances of the case - Hence, as far as penalty is concerned, the order in that regard is liable to be set aside.
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