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2013 (11) TMI 846 - AT - Central ExciseDenial of Cenvat credit – Onus to prove – Cenvat credit taken on the basis of extra copy invoices - Held that:- The appellant was required to establish with documentary evidences and records maintained by them, that all the inputs/capital goods were received in their Unit-I under proper documents and were in fact used in their present unit - On the contrary, appellant is trying to explain that it does not make any difference if documents are not in the name of the appellant but in the name of other unit of the same group of companies - the appellant has got five units and credit is taken on the basis of extra copies of invoice, or on the basis of invoices in the name of other units, Department has every right to ask the appellant to justify the receipt of the inputs/ capital goods in the factory and its use in the factory of the appellant. Under Rule 9(5) of the CENVAT Credit Rules, 2004, the onus is on the appellant to take appropriate care and satisfy himself properly regarding admissibility of credit before taking the credit - receipt of goods in the factory premises of the appellant has not been established by the appellant – thus, CENVAT Credit has been correctly denied as its receipt and use in the factory of the appellant is not established – Decided against Assessee. Penalty under Rule 15(2) of CENVAT Credit Rules, 2004, r.w Section 11AC of the Central Excise Act, 1944 and under Rule 25 (1)(a) of Central Excise Rules, 2002 – Held that:- The penalty is not attracted in the case because it has not been brought out and established by the Revenue that CENVAT Credit available in appellant’s CENVAT Credit account at any stage for the period March 2004 to March 2007 was less than Rs.8,62,554/- so that the goods cleared can be considered to have been cleared without payment of duty - in recorded transactions, there cannot be any intention to evade any Central Excise duty when the credit is got recovered from the appellant – thus, penalty imposed upon the appellant under Rule 25(1) of Central Excise Rules, 2002 set aside – Decided in favour of Assessee.
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