TMI Blog2013 (7) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 would be applicable. Held that:- Ratio of the above judgment of the Apex Court is applicable to this case as sub-rule (5) of Rule 9 of Cenvat Credit Rules, 2004 emphasises that burden of proof regarding the admissibility of the Cenvat credit shall lie upon the manufacture taking such credit - It is for the manufacturer taking Cenvat credit on the basis of an invoice issued by a manufacturer or registered dealer to ensure that the credit is correctly taken – Higher Cenvat Credit availed to be recovered - Decided against the assessee. Penalty - No dispute that the invoices issued by the registered dealer were having reference to the manufacturer's invoices - The manufacturers invoices had not been enclosed by the registered dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit alongwith interest and imposition of penalty, the same were dropped by the Deputy Commissioner vide order-in-original dated 22/9/09 on the ground that the appellant had no knowledge about the higher credit having been passed on by the registered dealer and, as such, there was no fraud on the part of the appellant in availing the higher credit. However, this order of the Deputy Commissioner was reviewed by the Commissioner by filing of a review appeal before the Commissioner (Appeals). The CCE (Appeals) by the impugned order-in-appeal dated 29th October 2010 reversed the Deputy Commissioner's order and confirmed the Cenvat credit demand of Rs. 62,000/- alongwith interest and imposed penalty of equal amount under Rule 15 (2) of the Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud and applying the extended limitation period and also invoking the penal provisions of Section 11 AC, that, in this regard she relies upon the Tribunal's judgment in the case of CCE, Mumbai vs. Anand Arc Electrodes Pvt. Ltd. reported in 2010 (252) E.L.T. 411 (Tri. - Mumbai), wherein the Tribunal has held that the assessee is eligible to take credit of duty on the strength of duty paying document which was correctly taken by them and the assessee was not having any responsibility to ensure that the correct duty is paid by the manufacturer, and that ratio of this judgment is squarely applicable to the facts of this case. She, therefore, pleaded that the impugned order confirming the Cenvat credit demand against the appellant and imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l wherein the higher amount of Cenvat credit had been passed on and that in view of this, the Commissioner (Appeals) has rightly concluded that the appellant are also a party to the fraud committed by the registered dealer. He, therefore, pleaded that there is no infirmity in the impugned order. He also pleaded that the judgment of the Tribunal in the case of CCE, Mumbai vs. Anand Arc Electrodes Pvt. Ltd. (supra) relied upon by the learned Counsel of the appellant is not applicable to the facts of this case. 5. I have carefully considered the submissions from both the sides and have perused the record. 6. In this case M/s Manu Metal, a registered dealer, had purchased the brass rods from the manufacturer and the same were sold by him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide judgment reported in 2009 (235) E.L.T. 587 (S.C.), wherein in a case where the importer had made duty free imports against DEPB strips purchased from another person and subsequently DEPB strips were found to be forged, the Apex Court following the principle of caveat emptor, held that the duty would be recoverable from the importer and for this purpose, the extended period under proviso to Section 28 of the Customs Act, 1962 would be applicable. The ratio of the above judgment of the Apex Court is applicable to this case as sub-rule (5) of Rule 9 of Cenvat Credit Rules, 2004 emphasises that burden of proof regarding the admissibility of the Cenvat credit shall lie upon the manufacture taking such credit and therefore it is for the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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