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TMI Blog2010 (5) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 25 ARE-2s pertaining to appeal No. 20/2007-C.E. and in respect of 10 ARE-2s pertaining to appeal No. 19/2007-C.E. claiming rebate of duty Rs. 39,60,431/- and Rs. 18,47,714/- respectively. The rebate claims were rejected by the lower authority vide the impugned orders on the ground that the credit utilized for the payment of the duty was availed on the strength of fictitious documents and non-production of relevant documents for verification makes the claims rejected. 2.1 Aggrieved by this the applicant had filed two appeals with the Commissioner (Appeals) who had remanded the case to adjudicating authority to decide case afresh. Pursuant to this order the lower authority after due processes of law, again rejected the rebate clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Cenvat Credit Rules, 2004 before availing the Cenvat credit for denying the respective rebate claim. Credit availed on the strength of alleged fraudulent invoice is confined to Rs. 47,14,247/-. 4.3 Therefore rebate on the duty paid on the balance credit of Rs. 10,93,898/- should have been paid without any demur. Instead, entire rebate claim was rejected. This is without prejudice to the main contention that there was no justifiable ground for rejecting the entire claim merely on the strength of unsustainable allegation. 4.4 The applicant submits that a parallel proceeding to recover the credit availed and utilized by the applicant was a subject matter of separate show cause proceeding initiated by the Additional Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended until further orders by order dated 8-11-06. 4.5 The applicant submits that it cannot suffer both Recovery Proceeding under Rule 12 & 14 Cenvat Credit Rules, 2002 & 2004 respectively read with Section 11A of Central Excise Act, 1944 as also denial of export incentive under rebate of duty scheme under Rule 18 of Central Excise Rules, 2002. Thus the impugned order cannot be sustained. Whether the applicant was entitled to credit will be decided independently in above W.Ps. If an adverse order is passed, the department can always initiate recovery proceeding. 4.6 As per Rule 9 of Cenvat Credit Rules, a manufacturer is entitled to avail Cenvat credit on the basis of document mentioned therein. As per Rule 9(1)(a)(iv) Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after due verification. Therefore, credit availed on the strength of properly documents cannot be denied. The supplier also had proper dealer's registration. The supplier-dealer sold the goods to applicant through his marketing agent and gave his Central Excise Registration. The dealer had also given complete records maintained by him, details of input purchase and the duty paid thereon and since the registration was given along with the application. Therefore, there was no reason for the applicant to suspect the genuineness. After investigation, however, the Supdt. of Central Excise Range-II, Division-II Surat-I Commissionerate has informed the Supdt. of Central Excise, Range-II Tirupur, M/s. Raj Traders that the supplier M/s. Raj Traders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut ever receiving the inputs (grey fabrics) into their factory. Hence, they have taken Cenvat credit wrongly without even receiving the inputs. When they have not even received the input, there is no question of using these inputs in the manufacture/processing of the finished goods. It leads to the conclusion that the duty paid inputs were never utilized in the manufacture of the exported goods. The applicant could not establish that the exported goods were manufactured out of the duty paid inputs received in their factory of manufacture. Hence, the substantial/mandatory condition of the export of duty paid goods to claim rebate under Rule 18 of the Central Excise Rules, 2002 were not proved by the applicant. The applicant also could not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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