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2017 (1) TMI 647 - AT - Central ExciseCENVAT credit - alleged short found inputs - goods not received into the factory - invoice no. 23 dated 23.04.2009 without receipt of the goods - invoices where goods were returned back - invoice no. 201 dated 31.03.2008 with no record of the consignment passing Churu toll post - Held that: - as regards denial of Cenvat Credit of ₹ 61,14,698/- on alleged short found inputs, the only charge is that the goods were kept in the plot adjacent to the factory premises. The said adjacent plot has been found to be regularized in the name of the appellant company. The appellant company has also intimated to the Revenue about the regularization of the adjacent plot in the name of the appellant - confirmation of the duty and penalty set aside. Cenvat Credit of ₹ 35,47,178/- availed on goods not received into the factory - Held that: - The appellant pleads that they should be called upon to deposit only the interest and 25% of penalty by giving them the benefit of Proviso to Section 11 AC of Central Excise Act, as no option was given to the assessee to pay 25% penalty - When the appellant can legally claim this benefit of payment of 25% penalty only as per provisions of Proviso to Section 11AC of Central Excise Act, the same is hereby allowed to them. Cenvat Credit of ₹ 66,442/- against the invoice no. 23 dated 23.04.2009 without receipt of the goods - Held that: - The assessee company has not been able to disprove the allegation that they took the Cenvat Credit of ₹ 66,442/- without actual receipt of corresponding inputs. The appellant has not placed on record any proof of receipt of subject inputs in their factory premises - recovery of credit with interest and penalty confirmed. Cenvat Credit of ₹ 11,08,524/- taken on invoices where goods were returned back - Held that: - The appellant company gives the proof of the return of goods in the form of letters from the customers or the marking on the invoice itself etc - We do not find any reason and the evidence for non-acceptance of the proof of return of the goods submitted by the appellant company in the form of letter, marking on the invoices GRs etc - credit allowed. Cenvat Credit of ₹ 2,33,694/- taken on invoice no. 201 dated 31.03.2008 with no record of the consignment passing Churu toll post - Held that: - it appears that mere non entry of the consignment at one of the toll posts cannot prove that the goods covered under the subject invoice were not received by the appellant company, unless there are other substantial corroboratory evidences to prove the charge of non-receipt of such goods - there is no material brought on record by the Department in support of allegation - demand dropped. Appeal partly allowed - decided partly in favor of appellant.
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