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2017 (1) TMI 488 - AT - Central ExciseCENVAT credit - clandestine removal - whether CENVAT Credit of ₹ 1,64,286/- availed by the appellant on the imported goods on the basis of the Bill of Entry No. 854886 dated 28.04.2005 is a case of fraudulent availment of CENVAT Credit since the allegation is that appellant has not actually received and used the said goods in the manufacture of declared output goods? Held that: - I find that the evidences submitted by the department in support of the fact that the goods were actually not received and consequently not use by the appellant is very conclusive and convincing. On the contrary, the Director of the appellant Company Sh. Kalpesh Prakas Oswal was specifically asked to provide evidence of transportation and receipt of the goods in his factory. He could only say that they could not find such documents and did not produce any document to substantiate transport and receipt of impugned goods in their factory. The appellants have argued that the Cenvat register entries are proof of the goods having been used in the factory - In the case of Viraj Alloys Ltd. Vs. CCE, Thane-Il [2004 (8) TMI 223 - CESTAT, MUMBAI], the Tribunal has held that the entry in RG-23A Part-I could not prove that inputs had been received in factory. Also, in the case of Harsaran Dass Sita Ram Vs. CCE. Panchkula [2015 (4) TMI 933 - PUNJAB & HARYANA HIGH COURT], it was held that in cases of wrong availment of credit without receipt of goods, the burden to prove genuineness of transaction or the fact that the appellant actually received and consumed the goods is on the appellants - In this case, the appellants have failed to prove transport, receipt and consumption of impugned goods in their factory. Appeal rejected - decided in favor of Revenue.
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