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2015 (1) TMI 284 - CESTAT AHMEDABADCENVAT credit - delay in availing credit on few invoices - cenvatable documents for the earlier period and which was not available in appellant's CENVAT register during the visit of the Audit officers - Misdeclaration of information - Held that:- Appellant cannot take cenvat credit in the CENVAT account on a date earlier than the visit of the audit officers when such credit was not earlier reflected in the CENVAT account. If some credit was admissible on the basis of cenvatable documents existing with the appellant, but credit was not taken, then the same could have only been taken after the date of visit of the Audit officers. It has been correctly held by the first appellate authority that if certain invoices were left out for which credit was not taken earlier then the same can be taken only as per the prescribed procedures and not on any date as per appellant s choice by modifying the records at will. Appeal filed by the appellant with respect to demand of ₹ 4,36,780/- along with interest is therefore, rejected. So far as remaining amount of demand of ₹ 5,80,856/- is concerned, it is observed that appellant gave wrong figures of ₹ 29,86,623/- as cenvat utilisation in the month of April 2004 instead of actual utilisation of ₹ 24,05,767/-. It is observed from the case records that this aspect was agitated before the lower authorities but the same was not properly appreciated by the Adjudicating authority. There is no discussion by the adjudicating authority as to why the revised claim of utilisation of ₹ 24,05,767/- CENVAT credit utilisation is not correct. This aspect of the demand is required to be remanded back to the Adjudicating authority for reconciliation. So far as imposition of penalties upon the appellant are concerned, it is observed that appellant was of the bonafide belief that CENVAT credit could be taken on an earlier date also where cenvatable documents were available with them. In the case of clandestine removal cases are admissible CENVAT credit is abated from the total demand even at the appellate stage. Further demand of ₹ 5,80,856/- is with respect to reconciliation of figures regarding taking of cenvatable credit. On the basis of above factual matrix, penalties under Section 76 and 78 of the Finance Act, 1994 are required to be set-aside under Section 80 of the Finance Act, 1994, even if extended period is invokable - Decided partly in favour of assesse.
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