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2017 (3) TMI 649 - AT - Central ExciseCENVAT credit - why cenvat credit amounting to ₹ 55,30,722/- taken on the strength of 97 invoices issued by M/s SPM Enterprises not be disallowed and recovered from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944? - The Revenue mainly alleges that in case of 97 invoices the subject inputs were not received by M/s GPIL and they were accordingly not utilised for manufacturing and, therefore, cenvat credit was not admissible - Held that: - the assessee M/s GPIL was a bonafide purchaser and it has not been proved that the said goods were not received by them - the goods were received by the Haridwar unit of Respondent-assessee. The Department has not submitted any substantial evidence to prove otherwise than the findings arrived at by the Commissioner in the impugned order - credit allowed - appeal dismissed - decided against Revenue. Clandestine removal - denial of credit - demand of duty with penalty - Held that: - the impugned order does not anywhere discuss to arrive at the conclusion that 109.512 MT of PP granules on which cenvat credit demand of ₹ 10,66,300/- has been confirmed was either diverted or clandestinely removed. Without the fact of clandestine removal being on record, it is not legal to disallow cenvat credit for the subject goods, if the same had been received by assessee-appellant in the factory - The impugned order notes that the subject goods were received by the appellant and when there is no diversion or clandestine removal of 109.552 MT of material, the denial of cenvat credit on the same cannot be legally sustained. Therefore, this issue needs fresh examination - appeal allowed by way of remand.
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