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2013 (4) TMI 30 - AT - Central ExciseStay - Cenvat Credit - Fraud - Department is of the opinion that the appellants has done a well-organized fraud under which invoices are issued without actually supplying any material, on the basis of which appellant have availed Cenvat credit. The department, therefore, issued a show cause notice seeking recovery of the allegedly wrongly taken Cenvat credit alongwith interest, imposition of penalty on appellant under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 and also for imposition of penalty under Rule 26 of the Central Excise Rules, 2002. Held that:- In view of these circumstances, though the show cause notice issued to appellant by then Commissioner, Central Excise, Jammu is still pending adjudication, probability is more that the allegation against appellant of issuing bogus invoices is correct, as at this prima facie stage for deciding the question of dispensation from the requirement of pre-deposit under Section 35F, the question which has to be decided is as to whether the evidence on record indicates the likelihood of the allegations of the duty evasion being upheld and if there is slightest risk to the Revenue, the dispensation from the provisions of Section 35F should not be given and if it has to be given the stiff conditions have to be imposed to safeguard the interests of the Revenue. If the allegation against appellant of having issued bogus invoices are proved, the allegations against other appellant of having availed Cenvat credit in a fraudulent manner would also stand proved. In view of these circumstances, we are of the view that this is not the case for total waiver.
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