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2016 (10) TMI 484 - CESTAT MUMBAICenvat credit - denial of amount of ₹ 1.20 Crore - documents on which credit was taken are not proper - Held that:- the entire credit is related to 16 services which are specified under Rule 6(5). The credit was denied on the basis of a report submitted by Superintendent (Adjudication) that there are some discrepancies in the documents. However there is no finding of the Adjudicating Authority that the input service was not received or payments there against were not made by the appellant. Moreover it is observed that the Adjudicating Authority has not given sufficient opportunity to the appellant for explaining the discrepancies to the Adjudicating Authority. Therefore, we find that to this extent, the Adjudicating Authority has grossly violated the principle of natural justice. Cenvat credit - denial of amount of ₹ 80 lakhs - credit attributed to the trading activity and not related to the manufacturing activity - Held that:- there is no dispute that the said Cenvat credit is attributed to the trading activity. Therefore, the same is primafacie not admissible to the appellant. Period of limitation - credit taken during the period 2008 to 2011 and the show cause notice was issued on 13-03-2013 - appellant have been submitting monthly returns alongwith details of Cenvat credit availed by them from time to time - suppression of facts - Held that:- the appellant is engaged in the manufacturing of final product and availing the credit on various services. However it cannot be ascertained from the record that part of the services are used for trading activity, therefore the department had no occasion to know this fact even from Cenvat statement and monthly returns filed by the appellant. Therefore, it cannot be said that there is no suppression of fact on the part of the appellant. Demand - wrong availment of Cenvat credit - Held that:- it is observed that this demand is towards an amount of Cenvat credit of input services utilized for payment of excise duty. In the judgment cited by the appellant in the case of CCE vs Raghuvar (India) Ltd. [2000 (5) TMI 40 - SUPREME COURT OF INDIA], the issue has been settled in favour of the appellant. We further find that as against wrong availment of Cenvat credit, there cannot be made double demand i.e. one of an amount of wrongly availed credit and second an amount of Cenvat credit utilized out of the same wrongly availed credit. This exercise will clearly amount to duplication of demand of the same amount, therefore the demand is primafacie, not sustainable.
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