9911796707
TMI Blog2016 (4) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... materials and, therefore, no credit on the same can be taken. The evidence in the shape of statements of transporter and material supplier as well as those of employees and Director were recorded to substantiate the claim. The statements of employees, Director and suppliers were retracted. The show-cause notice invoked Rule 9(5) of the Cenvat Credit Rules reads, 2004. The show-cause notice was confirmed by the original adjudicating authority and various penalties ranging from Rs. 10 lakhs to 20 lakhs were imposed on other noticees under Rule 15(2) and Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The demand and penalties were set aside by the Commissioner (Appeals). While setting aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d should be imposed. In the instant case, the wrong aavailment of credit is Rs. 29,24,654/-, whereas all the five appellants have been imposed with penalty ranging from Rs. 10,00,000/- to Rs. 20,00,000/- which shows the lack of knowledge of the adjudicating authority on Central Excise provisions. Besides, it also shows that the impugned order has been passed mechanically without application of mind which is against the principles of natural justice. Under the above circumstances, the personal penalty imposed under rule 15 read with section 11AC of the Act on all five appellants is not only sustainable on merits but also on the account of wrong application of rules and sections." Aggrieved by the said order, the Revenue is in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input and capital goods in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilized, the person from whom the input or capital goods have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit." It is clear from the text of the Rule that the onus of establishing that the goods have been received is on the person who has taken the credit. The show-cause notice invoked the said rule and produced certain evidence in the shape of statements and documents. Some statements have been retracted, however, there has been no effort on the part of respondents to fulfill the requirement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods, then, all such goods shall be liable to confiscation and such person, shall be liable to be penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or ten thousand rupees, whichever is greater. (Emphasis supplied.) 7. The aforesaid rule opens with the wording if any person, takes CENVAT credit ...... These words are indicative of the fact that the penalty is imposable on the person who takes Cenvat credit. In other words, the person who has availed CENVAT credit is the only person liable to be visited with the penalty. None of the petitioners has availed CENVAT credit. It is availed by the Company alone; where the petitioners are directors. Therefore, the penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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