TMI Blog2015 (8) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... venue should be extended to the appellant and in the absence of such cross-examination extended, the statements of such persons can not be relied upon as evidence. - appellant M/s. Dhakad Metal Corporation can not be held to have any malafide intention to take wrong credit and extended period of demand cannot be invoked in the present case against them. In this case, the demand is for the period 2005-06 whereas the show cause notice was issued on 20.02.2009. As the extended period is not invokable, therefore, the demand is also time barred in addition to credit being admissible on merits. Penalties under Rule 15 of Cenvat Credit Rules, 2004 are required to be imposed upon the persons who has taken or utilised CENVAT credit in respect of inputs or capital goods wrongly in contravention of any of the provisions of Cenvat Credit Rules. Appellant M/s. Bhavna Metal Company has not been shown to have taken any credit wrongly. Further from the case records it is observed that it is not brought out by the Revenue that at the time of issuing cenvatable invoices registered dealer did not receive inputs alongwith duty paying documents. The fact of duty being paid by M/s. Prasun Ferro Allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs including M/s. Bhavna Metal Company. That at per 8 invoices issued by M/s. Prasun Ferro Alloys Metal Casting Pvt. Limited in the year 2005-06, the clearances were shown to have been made to the registered dealer M/s. Bhavna Metal Company. That as per the investigation done by DGCEI the vehicles shown to have carried Copper Rods/ Brass rods/ Copper ingots to M/s. Dhakad Metal Corporation and M/s. Bhavna Metal Company were either Auto Rickshaw or transport registration numbers were not existing and that such vehicles never crossed RTO check post at Bhilad. It was the case of the learned Advocate that M/s. Dhakad Metal Corporation actually received the inputs alongwith duty paying documents issued by registered dealer M/s. Bhavna Metal Company. That as per the statement of registered dealer, the documents alongwith goods were sent to M/s. Dhakad Metal Corporation and at the time of receipt of inputs, appellant M/s. Dhakad Metal Corporation were not aware that original manufacturer M/s. Prasun Ferro Alloys Metal Casting Pvt. Limited had no facility to manufacture such goods. It was his case that extended period can not be invoked while demanding duty as his client was under bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metal Corporation also furnished Xerox copies of invoices under which inputs were received, which was available before the lower authorities. It was his case that vehicle numbers on the documents are mentioned and that at the time of receipt of the goods, the vehicle numbers mentioned on the cenvatable invoices were not required to be checked up with vehicles in which inputs were received. He relied upon the following case laws to argue that cenvat credit is admissible even if the manufacturing unit is found to be non-existing:- (a) CCE, Kanpur vs. Juhi Alloys Limited - [2013 (296) ELT 533 (Tri. Delhi)] (b) CCE ST, Kanpur vs. Julhi Alloys Limited - [2014 (302) ELT 487 (All.)] (c) CCE, Kanpur vs. R.H.L. Profiles Pvt. Limited - [2013 (292) ELT 313 (Tri. Del.)] (d) Shakti Steel Rolling Mills vs. CCE, Chandigarh - [2014 (304) ELT 109 (Tri. Del.)] (e) Nidhi Metal Auto Components Pvt. Limited vs. CCE Delhi - 2015-TIOL-667-CESTAT-DEL. 5. Shri J. Nair (AR) appearing on behalf of the Revenue argued that as per the investigation undertaken by the officers of DGCEI, the original manufacturer M/s. Prasun Ferro Alloys Metal Casting Pvt. Limited, Thane was found to be havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ferro Alloys Metal Casting Pvt. Limited who had no facility for manufacturing such inputs. In the above factual matrix, appellant M/s. Dhakad Metal Corporation can not be held to have any malafide intention to take wrong credit and extended period of demand cannot be invoked in the present case against them. In this case, the demand is for the period 2005-06 whereas the show cause notice was issued on 20.02.2009. As the extended period is not invokable, therefore, the demand is also time barred in addition to credit being admissible on merits. Accordingly appeal filed by M/s. Dhakad Metal Corporation is required to be allowed. 7. So far as imposition of penalty upon M/s. Bhavna Metal Company is concerned, it is observed that the same has been imposed under Rule 15 of Cenvat Credit Rules, 2004. The provisions of Rule 15 are reproduced below:- Rule 15. Confiscation and penalty. - (1) if any person, takes or utilises CENVAT credit in respect of input or capital goods or input services, wrongly or in contravention of any of the provisions of these rules, then, all such goods shall be liable to confiscation and such person, shall be liable to a penalty not exceeding the duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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