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2011 (10) TMI 69 - CESTAT, BANGALOREWrong availment of cenvat credit - fraudulent activity - Held that:- it appears that all the evidentiary materials on record were duly considered by the adjudicating authority. The affidavit in question was not before that authority. Even the assessee (GS Alloy Castings Pvt. Ltd.) did not rely on any such affidavit in their reply to the show-cause notice. It is surprising to note that the appellate authority chose to permit the assessee to bring on record the said affidavit. - A crucial fact was either overlooked or ignored by the appellate authority and the same is that an amount equal to the credit in question was paid by the assessee prior to issue of show-cause notice and the same was appropriated by the adjudicating authority. - Coupled with this is the fact that the said payment was not under protest and that this payment was made close on the heels of admission of lapse under Section 14 of Central Excise Act. - Matter remanded to commissioner (appeals) for fresh decision.
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