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2014 (7) TMI 1027 - CESTAT NEW DELHIAvailment of wrongful credit - Goods not received but credit availed - Credit reversed befor issuance of SCN - Levy of penalty - Whether the appellants have availed the Cenvat credit on the basis of the Cenvatable invoices issued by M/s HSAL, without actually receiving the inputs - Held that:- The investigations conducted at the end of the manufacturer, transporter as also the appellant resulted in emergence of evidence clearly pointing out to the fact of wrong availment of credit. The manufacturer’s statement is not a general statement laying down in some cases the credit has been based on without the corresponding supply of goods. It is a specific statement laying down that only Cenvatable invoices were issued in the name of the appellant whereas the inputs were diverted to other manufacturer at Jodhpur and Ahmedabad. Revenue has conducted further investigations from the transporters as also from the owners of the truck mentioned in the invoices. The said investigations also resulted in establishing the fact that the trucks in question were never used for transportation of the goods from M/s HSAL to the appellant’s factory premises. All the representatives of the transporter as also the owners of the truck have clarified such position. Further the appellant’s authorised representative has clearly accepted the fact that no inputs were received by them and they had taken the credit on the basis only the Cenvatable invoices. Similarly the fact of payment of the Cenvat credit by reversing the entries in the Cenvat account before the issuance of the Show Cause Notice is not sufficient to accept the appellant’s contention that no penalty should be imposed upon them. In cases of fraud, mere deposit of the duty before the issuance of the Show Cause Notice is not sufficient for non-invocation of the penal provision. - Decided against assessee.
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