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2013 (9) TMI 649 - CESTAT AHMEDABADBenefit of Notification No.32/99 – Inadmissible Refund - The investigation revealed that the unit did not have any manufacturing facility and issued only Central Excise invoices to different buyers without clearance of the goods - The unit paid duty on the goods and obtained refund of the duty paid as per provisions of Notification No.32/99 - The issue was regarding recovery of inadmissible refund - Whether cross examination should have been extended in the case or not - Held that:- The demand for wrongly availed cenvat credit was sustainable with interest - Department had done enough in the case to show that goods had not been received and appellant failed to discharge the burden of showing that they had actually received the goods - The department produced prima-facie evidence to show that M/s. Matiz Metals Pvt. Ltd. did not supply the goods to M/s. Shakti Enterprises and M/s. Shakti Enterprises did not supply the goods to CEPL and the transporter admitted not transporting the goods, the burden to show that there was actually receipt of the goods would fall on the appellant - CEPL have not chosen to make any efforts to produce any evidence to show such receipt of goods - appellant was a party to the conspiracy of passing on cenvat credit without actually supplying the goods. Benefit of Reduced Penalty - Whether the Commissioner (Appeals) was right in allowing the benefit of reduced penalty if the payment of Cenvat credit demanded with interest and 25% towards penalty was made within thirty days of communication of the order - Held that:- The fact that original adjudicating authority had extended such a facility, no appellate authority could once again make similar offer - even after the original adjudicating authority had given an option, similar option can be extended again at the appellate stage can be said to have laid down such a ratio - The original adjudicating authority had extended the option in paragraph 14(3) of his order - once an option was given, if the appellant failed to utilise the same, such an option cannot be extended again – Decided in favor of Revenue. Penalty - Held that:- Taking note of the fact that total wrong credit was availed and the appellant will have to pay mandatory penalty of 100% having not availed the option given and also having regard to the facts and circumstances of the case and the role of the director – it would be to reduce the penalty - Decided against Assesse.
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