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2015 (11) TMI 213 - AT - Central ExciseDenial of CENVAT Credit - Clandestine removal - Shortage of goods - Bogus invoices - Non receipt of actual goods - Held that:- there is no dispute that the entire shortage found in the physical stock taken by the officers is less than 5%. The director of the assessee/company also stated that the difference in stock is only due to the accounting method and not due to the clandestine removal. - shortage in the range of +/- 5 % should be ignored and it is not justified to confirmed demand on this count. I find that aforesaid judgment is squarely applicable in the present case. Accordingly, following the ratio of the above judgment, I drop the demand in respect of shortage found in the physical stock and consequently penalties commensurate to the duty of such shortage also not sustainable. As regard the duty on debit note, the assesse admittedly paid the duty and not contested. In my considered view, the penalties related to duty on debit note is also not maintainable as there is no suppression of facts on the part of the assessee in respect of non payment of duty on debit note, therefore the department s appeal which is limited to penalties on shortage and debit note does not survive and the same is dismissed. Cenvat Credit - Non receipt of Inputs / raw material - Since the Cenvat Credit was fraudulently availed without receipt of the input the penalties is unavoidably imposable, hence the same is also maintained. I dropped the part of the duty in respect of shortage of material, therefore Shri. Sanjay Agarwal, Director of the assessee/company deserves reduction of penalty, therefore I reduce penalty from ₹ 5 lakhs to ₹ 3 lakhs on Shri. Sanjay Agarwal. In view of my above discussion appeals of the assessees and Shri. Sanjay Agarwal is partly allowed - Decided partly in favour of assessee.
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