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2018 (10) TMI 160 - AT - Central ExciseCENVAT Credit - ineligible documents - the Department took the view that the goods cleared under those invoices had not suffered any Central Excise Duty - period April, 2003 to December, 2003. Held that:- During the disputed period, invoices for clearance of goods from the factory were required to be done so under cover of an invoice in conformity with Rule 11 of the erstwhile Central Excise Rules, 2002. A number of details were required to be compulsorily indicated on such invoices including Central Excise Registration, Duty payment details, etc. It is pertinent to note that none of the invoices recovered at the time of visit of the officers indicated any of these particulars, leave alone details of duty payment. From the facts on record it also emerges that none of the records available at the time of visit contained any details or documentations of such discharge of duty liability nor was any proof of such duty payment produced at the time of visit of the officers. The Show Cause Notice dated 02.02.2005 while referring to CENVAT Credit availment of ₹ 15,34,147/- and ₹ 1,18,544/- (AED(T)) by the appellants as shown in their ER-3 returns filed on 03.02.2004, has however found fault with some of the availments based on alleged ineligible documents like invoices issued by depot which is not registered, invoices not issued as per Rule 11 of the Rules and invoices issued prior to the date of registration, amounts to ₹ 6,98,444/- only. Thus, less than half of the amount claimed as CENVAT Credit by the appellant in their ER-3 returns amounting to ₹ 6,98,444/- was disputed by the Department. Penalty u/s 11AC - Held that:- Though the appellants had failed to discharge the Central Excise duty, they cannot be saddled with the intention to evade payment of duty for the reason that they had enough CENVAT Credit in their accounts for the disputed period so as to enable them to pay the duty - the allegation of suppression of facts with intention to evade payment of duty so as to impose penalty under Section 11AC is absent in the present case. The equal penalty of ₹ 12,30,993/- is therefore set aside. Appeal allowed in part.
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