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2016 (7) TMI 156 - CESTAT MUMBAI

2016 (7) TMI 156 - CESTAT MUMBAI - TMI - Cenvat Credit - original duty payment document / invoices were lost / destroyed in the fire - department contended that respondent were not having original input invoices to be produced for verification and the Cenvat credit was availed in respect of non existing invoices - Held that:- even though invoices have been destroyed in fire but if invoices have been recorded in the ledger and books of accounts of the respondent the Cenvat credit can not be denie .....

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o the respondent as from the intimation itself it cannot be said whether the invoices were existing or not therefore if it is proved that invoices were received by the respondent, longer period of demand is correctly invokable. As per my above discussion, I set aside the impugned order and remand the matter to the original adjudicating authority to pass a denovo adjudication order after verification of books of accounts, ledger and payment particulars towards such invoices. - Decided partly in f .....

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AYCEE/13-14 dated 16/4/2013. 2. The brief fact of the case is that during the course of audit of the respondent's record, audit officers observed that original invoices on which Cenvat credit have been availed are not available, the same were asked from the respondent to produce, on which respondent submitted that original invoices were shifted to store in the Cotton Corporation of India Kalamboli which subsequently lost/destroyed in an accident of fire occurred on 2/11/2011. Respondent in t .....

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8377; 23,22,413/-. The Adjudicating authority while adjudicating show cause notice denied the Cenvat credit, demanded interest and imposed penalty of equal amount under Rule 15(3) of Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act 1994. Aggrieved by the Adjudication order dated 15/4/2013 respondent filed appeal before the Commissioner(Appeals) which was allowed accepting the submission made by the respondent. Aggrieved by the impugned order, Revenue filed this appeal. 4. Shri. .....

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took place in the godown. Even thereafter in the correspondence made by the respondent, they have not intimated regarding the fire incidence. Therefore conduct of the respondent clearly shows that original invoices were not existing and to hide this fact respondent has given excuses. In this given fact, the original authority has rightly denied Cenvat credit, Ld. Commissioner(Appeals) without appreciating the vital fact i.e. non availability of the invoice, allowed the appeal of the respondent, .....

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d [2012(28) S.T.R. 104 (Tri. Ahmd.)] He submits that Ld. Commissioner has also considering the limitation on the ground that show cause notice issued after gap of two years from the date of audit, Commissioner found that there is no evidence on record that the respondent had committed fraud or suppression of material fact from the department and the respondent initimated to the departmental authority about fire incidence. He submits that since service tax paying documents itself were not availab .....

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was returned as undelivered. 6. From the record of the appeal, it is observed that this matter was listed on number of times earlier i.e. 5/3/2015, 18/6/2015, 14/8/2015, 9/10/2015, 29/12/2015 and 29/1/2016 and non of the said dates of hearing was attended by the respondent therefore it is clear that respondent is not serious to pursue their case, therefore I have no option except to proceed to dispose of the appeal on the basis of submission made by Ld. A.R. and the material available on record. .....

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