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M/s Shree Bhageswari Papers Ltd. Versus Commissioner of C. Ex., Meerut I

2016 (7) TMI 1107 - CESTAT ALLAHABAD

Removal of goods as such - Demand of duty under Rule 3 (5) and Rule 3(5A) of Cenvat Credit Rules, 2004 - Held that:- The provisions of rule 3 (5A) read with Rule 3 (5) are not applicable in view of the categorical assertion of the appellant that no Cenvat credit was availed, which fact is further corroborated by the memorandum of purchase of 1997. Also hold that the extended period of limitation is not invokable as no case of any suppression or misconduct is made out on the part of the appellant .....

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Meerut-I, by which demand of duty under Rule 3 (5) and Rule 3(5A) of Cenvat Credit Rules, 2004 read with Rule 14 of Cenvat Credit Rules, ₹ 2,16,300/- have been upheld along with interest and penalty of equal amount have been imposed under Rule 15 of CCR, 2004. 2. The brief facts are that the appellant purchased one second hand boiler in June,1997 vide cheque dated 13/6/97 ₹ 2,00,000/- from one M/s Agarwal Pulp & Paper Mills Ltd., Muzaffarnagar. After purchasing of the boiler, th .....

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duty is payable on the boiler source sold and in reply the appellant stated that the sale of the second hand boiler in 1997 by the seller, which did not attract any Excise duty liability and accordingly, they had not taken any Cenvat credit. That as the said boiler is disposed off after the use of 10 years or more, it does not attract any payment of duty by way of reversal of Cenvat credit. SCN dated 5/5/11 was issued as it appeared to revenue that the facts are covered by Rule 3 (5A) of CCR, 20 .....

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partment and accordingly, indicates mala fide intention to evade duty on the transaction value of the boiler. 2.1 The appellant contested the show cause notice and the same was adjudicated and the proposed demand was confirmed along with equal amount of penalty under rule 15 of CCR read with Rule 25 of the Central Excise Rules read with Section 11AC of the Act. Being aggrieved the appellant preferred appeal before the Commissioner (Appeals) who vide the impugned order have been pleased to reject .....

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lised is recorded and the burden of proof regarding the admissibility of Cenvat credit shall lie upon the manufacturer. Further, it was observed that when capital goods on which credit has been availed are cleared by the manufacturer, he is required to pay the amount of equal/proportionate Cenvat credit thereon or the amount of Central Excise duty on transaction value, as per the provisions provided under Rule 3 (5) read with Rule 3 (5A) of CCR. Being aggrieved the appellant is before this Tribu .....

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been charged in the said memorandum of sale. It is further argued that no demand can be raised on the basis of presumption of having availed Cenvat credit, when the appellant have categorically denied of availing of any Cenvat credit, nor the revenue could bring any facts on record in support of the same. It is further contention that there is no suppression of facts by the appellant as the revenue audit found the facts from the books of accounts maintained by the appellant in the ordinary cour .....

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