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2014 (8) TMI 774 - CESTAT MUMBAICenvat Credit - removal of goods as such versus Trading activity - Interest and equivalent amount of penalty - Held that:- In this case it is no doubt that the appellant has imported HR Carbon Steel Plates. It is also not in doubt that the description while clearing the said goods which the appellant shows is HR MS Plates but the invoice clearly indicates that they have reversed the credit taken on the said goods under Rule 3(5) of the Cenvat Credit Rules 2004. This discrepancy came to the knowledge during the course of audit conducted in the factory of the appellant. When a invoice showing that the assessee has cleared the goods as such by reversal of the Cenvat Credit under Rule 3(5) of the Cenvat Credit Rule 2004, no inquiry has been conducted at the end of the buyer and it has also not ascertained from the records that under which invoice the credit has been taken on the said goods. Further, we find that it is not alleged that the appellant has not reversed the Cenvat Credit availed on the said goods. In these circumstances, the allegation of the department that the appellant has imported the said goods for trading activity and not sought any permission for their trading activity is not acceptable. Therefore, the said goods were cleared as such by reversal of the Cenvat Credit as per Rule 3 (5) of the Cenvat Credit Rules 2004, and the reversal of credit is not disputed by the department. In these circumstances, we hold that the duty paid by the appellant at the time of clearance of these goods by reversal of Cenvat Credit amounts to non availment of the Cenvat Credit of the said goods. Therefore the impugned order is not sustainable - Decided in favour of assessee.
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