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2019 (2) TMI 4 - AT - Central ExciseCENVAT Credit - fraudulent availment of CENVAT Credit - the appellants AVCL received non-duty paid MS Scrap without any valid cenvated documents from registered dealers - also it is alleged that the description of goods shown in the invoices differs from the description of goods supplied by the manufacturers to the registered dealer - demand mainly based on statements of the Driver - Held that:- It must be stated that other than mere statements, there is no evidence adduced by the department to establish that there has been fraudulent availment of credit. In cross-examination Shri T.K. Sundaram has stated that he has given the statements under force and coercion. It is explained by Shri T.K. Sundaram that they had used gas cutting machines to cut and size the materials received from the manufacturers as required by the clients. All these would go to show that AVCL has received scrap only. The department has not put forward any invoices, which has not included Central Excise duty. The basic allegation is that there is difference in the description of the goods. This has been plausibly explained by AVCL as well as Shri T.K. Sundaram. It is also to be noted that the AVCL uses all the input only after through lab testing. In such a case, the allegation that they have not received inputs or that they have differently described the inputs etc., do not seem to be probable at all. Needless to say that when finished products are exported, AVCL would not be making any gain by indulging in such fraudulent availment of credit, as they cannot use such credit. The department has failed to establish fraudulent availement of credit on the part of AVCL - demand do not sustain - appeal allowed - decided in favor of appellant.
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