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TMI Blog2013 (12) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... and the various issues arising with reference to fraud and collusion alleged in the case. The present appeal is therefore remanded to the Tribunal to decide the matter afresh after hearing both the sides and tender fresh decision in accordance with law. Such exercise shall be completed expeditiously latest by 30th April, 2013. 6.1... 7. It is clarified that this Court has not gone into any aspect of merit of the case, nor has expressed any opinion on merit. The matter is at large before the Tribunal to be decided afresh on all issues involved. It is further observed that in deciding the matter afresh pursuant to the present order, the Tribunal shall not be influenced by its earlier order which is set aside herein, nor shall be influenced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion before the authorities that they have reversed the amount along with interest and there being no allegation of fraud and collusion against them, imposition of penalty was not justified. 5. Lower authorities did not agree with the contentions raised and confirmed the demand on the appellant along with interest and imposed equivalent amount of penalty under Rule 15 of CENVAT Credit Rules, 2002/2004 read with Section 11AC of Central Excise Act, 1944. 6. Ld. Counsel Shri J.C. Patel appearing on behalf of the appellant would submit that the evidence on record does not show that the appellant was aware or was party to the fraud played by the manufacturer M/s N.H. Harsora Pvt. Ltd. while clearing the goods on parallel invoices. It is his su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the registered dealer, as indicated in the invoices of the registered dealers. It is his submission that the appellant cannot be precluded from availing CENVAT Credit and there is no question of appellant being a party to the fraud played by the manufacturer of clearing the goods on parallel invoices without paying the duty to the Government, though the same has been recovered by the manufacturer from the dealer. It is his submission that Deputy General Manager of the appellant's company has clearly stated that they have purchased such capital goods from M/s Nerka Chemicals Pvt. Ltd, which is a group company of M/s United Phosphorus Ltd. It is his submission that the purchases of such goods from M/s Nerka Chemicals Pvt. Ltd was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant as M/s Nerka Chemicals Pvt. Ltd. has registered themselves in trading Plant & Machinery and appellant had purchased the capital goods from them and have taken only CENVAT Credit based on the invoices wherein duty has been indicated. It is his submission that mere fact that this was the only transaction of capital goods undertaken by the said dealer, cannot and does not in any way establish that the appellant was a party to the fraud played by the manufacturer of capital goods. It is his submission that they had complied with the provisions of Rule 7(2) of CENVAT Credit Rules, 2002 and explanation thereto, as they had every reason to believe that M/s Nerka Chemicals Pvt. Ltd. being a registered dealer, have received the consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his submission that said transaction itself creates suspicion as to what is the correct nature of the transaction. He would submit that the subsequent investigation have proved that the manufacturer M/s N.H. Harsora have cleared the said capital goods without payment of duty and hence such capital goods were non-duty paid. It is his submission the CENVAT Credit availed by the appellant in this case is incorrect as they have availed the CENVAT Credit on the documents which though indicated the payment of Central Excise duty; while the said goods were cleared clandestinely. It is his submission that the appellant herein was very much aware of the entire transaction as they have admitted in their statement that the amount paid by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in hand, though, it is not clear as to whether the Department has issued any show cause notice to M/s N.H. Harsora Pvt. Ltd., who was the manufacturer of such capital goods, suffice to say that having discharged the duty liability on the said capital goods subsequently, after the clearance will itself an indicator that CENVAT Credit availability of Central Excise duty paid on such capital goods is barred as there was suppression and mis-statement by the manufacturer. 11. Be that as it may, I find that though the appellant has claimed that they were not aware of non-duty paid character of the goods received by them from a registered dealer, I find that all the legal defenses raised by the ld.Counsel will fall like nine pins, on the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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