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2013 (7) TMI 307 - AT - Central ExciseCenvat Credit - Forged DEPB Scrips - Extended period of limitation - As per the case of CC (Preventive) vs. Aafloat Textiles (I) P. Ltd. decided by the Apex Court, vide judgment reported in [2009 (2) TMI 75 - SUPREME COURT], wherein in a case where the importer had made duty free imports against DEPB strips purchased from another person and subsequently DEPB strips were found to be forged, the Apex Court following the principle of caveat emptor, held that the duty would be recoverable from the importer and for this purpose, the extended period under proviso to Section 28 of the Customs Act, 1962 would be applicable. Held that:- Ratio of the above judgment of the Apex Court is applicable to this case as sub-rule (5) of Rule 9 of Cenvat Credit Rules, 2004 emphasises that burden of proof regarding the admissibility of the Cenvat credit shall lie upon the manufacture taking such credit - It is for the manufacturer taking Cenvat credit on the basis of an invoice issued by a manufacturer or registered dealer to ensure that the credit is correctly taken – Higher Cenvat Credit availed to be recovered - Decided against the assessee. Penalty - No dispute that the invoices issued by the registered dealer were having reference to the manufacturer's invoices - The manufacturers invoices had not been enclosed by the registered dealer and as such, the appellant on the basis of the invoices issued by the registered dealer not were in a position to know as to whether higher credit has been passed on – Held that:- In the circumstances of the case, they would not be liable for penalty under Rule 15 (2) of Cenvat Credit Rules, 2004, readwith Section 11AC of the Central Excise Act, 1944. - Decided in favor of assessee.
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