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2015 (11) TMI 1478 - AT - Central ExciseWaiver of pre deposit - area based exemption - Refund under notification no. 56/02-CE - The allegation against VKM is that during the period from December 2004 to November 2006, they did not manufacture any goods in their factory and only showed production in their records and thus have wrongly claimed the refund under notification no. 56/02-CE by the way of credit entries in PLA - Held that:- It is also seen that while the present Show Cause Notice dated 05.01.2010 alleges that during the period from December 2004 to November 2006 there was no manufacturing activity and on this basis seeks to recover the refund of ₹ 42,37,24,491/- from the appellant, for subsequent months, that is, for the period from December 2006 to August 2008, the Department has sanctioned the refund by different orders and for that period no Show Cause Notice has been issued. We are of the prima facie view, that Department cannot take contradictory stand for the period from December 2009 to November 2006 and for period from December 2006 to August 2008 when the machinery installed and the staff employed was the same. Even if statement of Sh. Atul Sharma, Manager of the Ahmadabad Branch of M/s Single Road Carriers, Delhi is believed, it would prove only the non transport of copper ingots of VKM from Delhi to Gujarat. By itself, this statement cannot lead to inference that there was no manufacture of copper ingots by Jammu unit of VKM and there was no transportation of copper ingots from Jammu to Delhi. - The allegation against VKM is showing bogus receipt of copper scrap and bogus manufacture and clearances of copper ingots without manufacturing and clearing any goods. This is the allegation which has been upheld against VKM in the impugned order. If this is so, there would be no duty liability against VKM and since VKM have paid the duty and have taken its refund under notification no. 56/02-CE, it amounts to non-payment of duty. Hence, in our prima facie view, there cannot be any fault recovery of duty from there as refund under notification no. 56/02-CE given to VKM is of the duty which was paid by them, while the same were not required to be paid. The real allegation against VKM would be the issue of bogus invoices of copper ingots and thereby enabling his customers to avail wrong Cenvat Credit, but neither the SCN sought imposition of penalty on VKM on this count nor the Commissioner has imposed penalty on VKM on this ground. - appellant have prima facie case in their favour. Therefore, the requirement of pre-deposit of duty demand, interest and penalty by VKM and the requirement of pre-deposit of penalty by Shri Shankar Lal Gupta, Authorized Signatory of VKM, Shri DK Jain of M/s Vikash Traders and the transporter KKR is, waived for hearing of their appeals and recovery thereof is stayed - Stay granted.
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