TMI Blog2016 (3) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... concealment has been alleged in the show cause notice. Availment of Modvat credit - Transferor of advance licence - Import duty cannot be confirmed and demanded from the transferor who is not the importer - Appellant failed to produce documentary evidence to prove that they did not avail modvat credit on inputs - Held that:- the case is covered by the judgment of this Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is directed against the order of the Commissioner of Customs, CSI Airport, Mumbai, dated 16.2.2001, vide which the learned Commissioner confirmed the demand of ₹ 2,61,402/- and also imposed penalty of ₹ 25,000/- on the appellant, along with interest. 2. The facts of the case are that a show cause notice dated 26.3.1999 was issued to one M/s. Premier Sales as importer along with va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellant submitted that admittedly the appellant is not the importer as stated in the show cause notice itself and the duty amount of ₹ 2,61,402/- has been confirmed with respect to the bills of entry shown at item No.3 and 4 of the annexure to the show cause notice and the date of bills of entry was 6.12.1994 and the show cause notice was issued on 26.3.1999 / 29.4.1999 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue has failed to prove the same and, therefore, the entire proceedings are liable to be set aside. In respect of his submission, the learned counsel relied upon the decision of this Tribunal in the case of Sunbeam Garments Pvt. Ltd. vs. CC, Kandla reported in 2012 (284) ELT 709 (Tri.-Ahmd.), which, according to the counsel, squarely applies to the facts of this case, wherein the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eam Garments Pvt. Ltd. (supra). The Tribunal in the said case relied upon the judgment of the Honble Supreme Court in the case of CC vs. Auto Ignition Ltd. reported in 2008 (226) ELT 14 (SC), wherein the Honble Supreme Court has held that onus to prove that the assessee has availed of the modvat credit was on the Revenue and the Revenue has failed to discharge that onus and, therefore, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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