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2016 (12) TMI 916 - AT - Central ExciseCENVAT credit - availing fraudulent credit by issuing CENVATable invoices without delivery of goods - clandestine removal - Held that: - One important aspect that has to be looked into is that when department alleges that no raw material was supplied by KMC and AAL to M/s. BDCPL and that only invoices were issued, the department has to prove how M/s. BDCPL could manufacture finished products on which they have paid excise duty during the relevant period. On conduct of inspection the stocks and statutory register of M/s. BDCPL did not show any discrepancy. In the absence of any evidence that M/s. BDCPL has procured raw material from any other source other than KMC/ AAL, and used the same to manufacture finished products, the allegation that KMC/AAL did not supply any goods but only issued invoices is not tenable. It is also to be noted that the Commissioner(Appeals) in the case of M/s. Khaitan Electrical Ltd., and KMC vide Order-in-Appeal No. 99/2009 dated 04.12.2009 and vide another Order-in-Appeal No. 26,27 and 28/2010 dated 26.02.2010 has set aside the demand interest and penalty raised against M/s. Prism Airtech and in the same order also set aside the penalty imposed against KMC who was a co-noticee - it was found that the overall evidences were similar in all the appeals. I am of the view, that department has failed to establish that appellants are guilty of indulging in activities of fraudulent availment of CENVAT credit as alleged in the notices, as the overall evidences were similar - appeal allowed - decided against Department.
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