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2011 (3) TMI 1130 - CESTAT, DELHIPenalty and interest - cenvat credit disallowed - assessees were required to enter the receipt of those goods in their RG-23D register and issue necessary invoices at the time of clearance of those goods from the assessees depot to be transported to the factory premises of M/s Hero Cycles Limited but they failed to make such entry as well as to issue such invoices and, therefore, the goods were liable to be confiscated and penalty was imposable in terms of Rule 209A of the erstwhile Central Excise Rules, 1944 - Held that:- As in the case in hand, the assessees never intended to issue any modvatable invoice nor to pass any credit and in fact they themselves had not availed the credit in respect of goods in question. This was not only the defence of the assessees but it is an undisputed fact as it is not the case of the department that the assessees had availed any credit in respect of duty paid on such goods or that any attempt was made to pass on credit by the assessees. There is neither a case of any clandestine removal of the goods in the course of transportation thereof, nor it is a case of mere issuances of invoices without goods having accompanied and in these circumstances, we do not found any case having been made out for taking action in terms of Rule 209A. The findings arrived at by the Commissioner (Appeals) that the goods were liable for confiscation is clearly not born out from the record and are not sustainable.
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