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2024 (1) TMI 1116 - AT - Central ExciseClandestine/ fraudulent operations - CENVAT Credit - fake invoices - credit availed without actually receiving the material as shown in the invoices issued by M/s V.K Metal Works, Jammu - HELD THAT:- On the preliminary objections raised by the Department that as the decision of the Tribunal in the case of M/s V.K Metal Works is under challenge before Hon’ble High Court of Jammu Kashmir & Ladakh, the present proceedings should be kept in abeyance, it is found that, as submitted by learned Counsel for the appellant, there is no stay granted by Hon’ble High Court of Jammu Kashmir & Ladakh; Tribunal has decided cases of similar customers of M/s V.K Metal Works even after the issue was under challenge as there was no stay granted - no case has been made by the Department to keep this case pending. Department has issued a show-cause notice to the appellants on the excisability of “copper keeth” thereby indirectly accepting that there was manufacturing activity and that the Department cannot take the stand that there was no manufacturing activity. It is also found that the Principal Bench relied on the case of R.A Castings Pvt. Ltd. [2008 (6) TMI 197 - CESTAT NEW DELHI] upheld by Hon’ble Allahabad High Court [2010 (9) TMI 669 - ALLAHABAD HIGH COURT] and by Hon’ble Supreme Court [2011 (1) TMI 1302 - SC ORDER] and decided the case in favour of M/s V.K Metal Works. The Tribunal decided the case of M/s Rachna Metal Industries Pvt. Ltd. [2018 (11) TMI 973 - CESTAT ALLAHABAD] in favour of the appellants therein, similarly placed as the present appellant observing that Even in the abovereferred case of M/s V.K. Metals and Others, the clandestine removal findings stands set aside by the Tribunal by observing that there has to be shown the receipt of raw material, utilization of the same, actual manufacture of the finished goods, the evidence of transportation and identity of the buyers etc. Inasmuch as nothing has been shown in the present case by the Revenue, we find no reasons to confirm the demand. It is found that the facts of the present case are identical and the proceedings emanated from the same investigation against M/s V.K Metal Works. There is no reason as to why a different view can be taken in this case. Accordingly, the impugned order is not sustainable. Appeal allowed.
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