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2020 (2) TMI 181 - AT - Central ExciseCENVAT Credit - duty paying invoices - fake invoices issued by non-existing suppliers - benefit of N/N. 34/2003-C.E vis-à-vis circular no. 703/19/2003-CX dt. 25-3-2003 - admissibility of appeal for hearing - monetary amount involved in the appeal - HELD THAT:- For duty demand of ₹ 25,544/- appellant had gone to the Hon’ble High Court as its appeal was not admitted for hearing because of operation of Section 35B that provides monetary limit to file appeal before the CESTAT. So primarily on point of law, this appeal is admitted for hearing in the CESTAT and factual aspect on which the issue of original appellant M/s. Accelerate Synthetic Pvt. Ltd. had gone for re-adjudication is un-related to this instant appeal as genuiness of the invoices received and availement of Cenvat Credit by M/s. Accelerate Synthetics Pvt. Ltd. would be determined in that re-adjudication process. Going by the text of N/N. 34/2003-C.E, under para 1 (2)(a) it has been clearly mentioned that first or second stage dealer may, at his option, remove such goods after undertaking activities such as packing, repacking etc. on payment of amount equivalent to duty of excise, which is levyable on such goods, it can avail Cenvat Credit on the same. Therefore, the appellant may also exercise his option not to remove such goods but payment of equivalent duty on such goods was a pre-condition which is under dispute because the first dealer is i.e. original supplier of appellant has been prosecuted for non-payment of duty and availement of Cenvat Credit which was subsequently passed on to the appellant by the supplier. This being the factual scenario, it is on the supplier of appellant on whom duty liability is to be determined since the credit has been passed on to the appellant by supplier after all payments had been made by the appellant. The denial of availment of Cenvat Credit on the ground that no physical movement of goods had taken place is also not in conformity to the procedure meant to be followed by the deemed textile manufactures - appeal allowed - decided in favor of appellant.
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