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2018 (6) TMI 375 - AT - Central ExciseCENVAT credit - fake invoices - The allegation of the department that the appellant had not received the quantity of inputs mentioned under these invoices, but erroneously availed the Credit - whether the appellant had correctly availed CENVAT Credit of the duty paid as mentioned in the invoices issued by the registered dealer M/s. Ushmi Ispat Pvt. Ltd., Mumbai? - Held that:- In the absence of evidences, to establish the fact of receipt of the inputs in their factory, when the vehicle numbers mentioned in the respective invoices, have been found to be incapable of carrying the quantity of goods mentioned under respective invoices, it is difficult to accept the contention of the appellant that the goods were received and used in or in relation to the manufacture of finished goods. It is necessary to be eligible to avail credit of the duty paid on respective invoices, the appellant should establish that not only the appropriate duty on the quantity of goods mentioned in the invoices have been paid, but also the quantity of goods have been received and used in or in relation of the manufacture of finished goods and the burden lies on the assessee when discrepancies are noticed in the input invoices on which credit availed - In the absence of corroborative evidences of receipt, there is no reason to interfere with the order of the Ld. Commissioner (Appeals) as far as confirmation of CENVAT Credit of ₹ 6,48,777/- with interest and penalty is concerned. The impugned order is modified to that extent and the appellant are eligible to discharge 25% of the penalty imposed under Rule 15(2) of Cenvat Credit Rules read with Section 11AC of the Central Excise Act, 1944, subject to the fulfillment of conditions mentioned under the said provisions - appeal allowed in part.
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