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2018 (5) TMI 873 - AT - Central ExciseCENVAT credit - receipt of invoices without receipt of inputs - whether the appellants had correctly availed the CENVAT credit of ₹ 27,49,037/-, against the input invoices issued by two registered dealers namely, M/s Goodluck Empire and M/s Jenil Empire during the relevant period i.e. 2006-07 and 2007-08? Held that: - to avail CENVAT credit on the inputs under CENVAT Credit Rules, 2004, as laid down under Rule 3 of the said Rules, the inputs not only to be duty paid, but also must have been received and utilized in or in relation to the manufacture of final products in the factory premises. In absence of reasonable explanation on the discrepancy of the entry relating to the particular vehicles mentioned in the invoices adverse inference could be drawn in this regard - similar view was expressed in the case of Gyscoal Alloys Ltd. vs CCE Ahmedabad-III [2014 (2) TMI 449 - GUJARAT HIGH COURT]. The Revenue has discharged its burden when it claimed that goods had not been received in the factory by pointing out the discrepancy in the input invoice, that is, wrong entry of vehicle number, now it is the turn of the Appellant to explain the discrepancy to establish the fact that the quantity of inputs mentioned in the invoices have been received in the factory and utilized in the manufacture of finished goods by adducing positive evidence - the quantity of inputs mentioned in the 58 invoices involving a total credit of ₹ 18,26,413/- had not been received in the factory and the credit was availed only on the input invoices - demand with interest and penalty upheld. Credit of ₹ 9,21,624/- availed against 27 invoices - Held that: - Except few statements of vehicle owners/representatives, the competence of the said persons to furnish such statement also being in dispute, and in absence of other corroborative evidence placed by the Revenue, to substantiate the allegation that the quantity of inputs mentioned in the invoices, where the capability of the vehicle mentioned in these invoices are not disputed, it is difficult to sustain the allegation of non receipt of the inputs against these set of input invoices - credit allowed - demand with interest and penalty set aside. Personal penalty imposed on other appellants - Held that: - they have actively participated/involved in the issuance of invoices, without movement of inputs, and some of the period involved is also after 01.3.2007, accordingly, liable for penalty u/r 26(2) of CER 2002 - quantum of penalty not reduced. Appeal allowed in part.
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