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2018 (5) TMI 380 - AT - Central ExciseCENVAT credit - receipt of goods from first state dealer who obtained the goods from a person not having manufacturing facility - Whether in the facts and circumstance of the case and evidences placed on record, Member (Judicial) is correct in holding that the appellant namely M/s. JSL Stainless Limited has correctly taken Cenvat credit on the invoices issued by M/s. National Udyog and therefore, proceedings against the appellant are not sustainable? - Difference of opinion - majority order. Held that: - the show cause notice is silent on the investigation in respect of the documents on the basis of which the appellant have availed Cenvat credit which was sought to be denied by Revenue, and that Revenue have not carried out any investigation regarding the goods which were transported from M/s National Udyog Limited to the appellant. The show cause notice is silent on the name of the manufacturer who supplied the said goods to the first stage dealer which were intern received by the appellant - The said show cause notice only discussed about the transaction between M/s. AIP Industries Limited and M/s. National Udyog. M/s. National Udyog is first stage dealer and any first stage dealer is not required to receive the goods only from one manufacturer. Had there been any investigation establishing that the inputs on which Cenvat credit was availed, as entered in the invoices issued by the first stage dealer, were the same goods which were involved in the investigation about the transaction between M/s AIP Industries and M/s National Udyog, then only this show cause notice could have sustained. In the present case, the assessee is found to have duly acted with all reasonable diligence in its dealings with the first stage dealer - the ruling in the case of CCE vs. Juhi Alloys Limited [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] squarely applies to the present case, where it was held that Admittedly, in the present case, the assessee was a bona fide purchaser of the goods for a price which included the duty element and payment was made by cheque. The assessee had received the inputs which were entered in the statutory records maintained by the assessee, credit remains allowed. In view of the majority decision the appeals are allowed.
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