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2022 (10) TMI 1007 - HC - Central ExciseDemand of duty - levy of 100% penalty upon the appellant - manufacture of aluminium ingots and die castings falling under Chapter 76 of the Central Excise Tariff Act 1985 - Section 35G of the Central Excise Act, 1944 - HELD THAT:- As per averments on record appellant purchases from first stage dealer and second stage dealer and credit is availed on the basis of invoices issued by both the first stage dealer as also second stage dealer. Apparently, the Directorate General of Central Excise Intelligence conducted an investigation against M/s Bhagwati Trading Company (first Stage dealer) and M/s Jagdamba Metal Store (second stage dealer). On the basis of such investigation an opinion was formed that the first stage dealer and second stage dealer have passed cenvat credit to the appellant without actual delivery of the goods. Accordingly a show cause notice was issued to the appellant alleging that cenvat credit amounting to Rs.8,74,357/- had been availed of without actually receiving goods. The demand was confirmed by the adjudicating authority vide order dated 01.04.2010. Such demand was confirmed by the Appellant Authority. An allegation of fraud must necessarily be proved by the person who levels such an allegation. Where, however, the department succeeds in prima-facie proving its allegation of fraud, the onus would shift to the assessee to prove the genuineness of the transaction. The department relies upon the statement made by Shri R.K. Gupta, the cheque signed by the appellant company recovered from the premises of Shri R.K.Gupta, the alleged discrepancies in description of goods in invoices and purchase invoices, the different mode of transport mentioned in purchase invoices, various documents i.e. fraudulent GR books/receipts, rubber stamps etc. recovered from the office of Shri R.K.Gupta but without a detailed reference to the appellant's transactions, part of the statement by Shri R.K.Gupta exonerating the appellant and without examining for RG 23-A part I, RG 23-A part II, details in cenvat return filed under Rule 57 A(c) of the Central Excise Rules, 1944 and RG 12 submitted to the Central Excise Department, Faridabad. The mere fact that the appellant purchased goods from Shri R.K.Gupta, would not by itself raise an inference of culpability or wrong doing. Matter remanded to the CESTAT for adjudication afresh after examining the statement made by Shri R.K.Gupta, bills, invoices, receipts, cheques and various forms and declarations etc. filed by the appellant before the department - the facts of the present case also warrant and justify a remand to the CESTAT for adjudicating the matter afresh and after examining the entire material in the nature of statutory returns/registers in question as also the declaration etc. that had been filed by the appellant - matter on remand.
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