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2016 (7) TMI 1139 - CESTAT HYDERABAD

2016 (7) TMI 1139 - CESTAT HYDERABAD - 2016 (339) E.L.T. 621 (Tri. - Hyd.) - Levy of penalty - CENVAT Credit - allegation that input was not at all received in the factory of the appellant - Held that:- The appellant had issued Central Excise invoices to the customer and had also reversed the credit. This reveal that they had no intention to evade payment of duty, but the same was due to non - adherance of proper procedures. The Commissioner (Appeals) has observed that no case has been made out .....

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a Reddy, Advocate for the Appellant. Sh. Sudhakar Reddy, Assistant Commissioner (AR) for the Respondent. ORDER The appellant is engaged in manufacture of cement and is availing the facility of CENVAT Credit of duty paid on inputs. The appellants imported 18,595.13 MTs of pet coke vide Bill of Entry No. 407640 dated 13.01.2010 and cleared goods on appropriate payment of duty. A quantity of 1105-800 MTs was cleared by appellant to another customer directly from the port. The appellant availed cred .....

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cause notice alleging irregular availment of credit of ₹ 12,96,846/- on input which was not at all received in the factory of the appellant. 2. After due process of law, the original authority confirmed, demand/recovery of credit of ₹ 12,96,486/- being the irregularly availed credit, along with interest and imposed equal amount of penalty, besides imposing separate penalty of ₹ 1,00,000/- on Vice President Sh. GNVSSR Kumar and penalty of ₹ 25,000/- on Sh. M. Rama Chandra, .....

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such invoice is a prescribed document as per Rule 9 of CENVAT Credit Rules, 2004. They could have otherwise cleared the part consignment to customer on the basis of photocopy of bill of entry duly attested by preventive officer of customs on which also, the customer is allowed to avail credit. However, on ignorance, and erroneous advice, the appellant showed the entire quantity as received in their factory and thereafter issued invoices to the customer. That there was no intention to evade payme .....

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ersed before utilization it amounted to not taking credit and the only irregularity committed is that appellant showed in the documents that the entire quantity was received in the factory. The appellant had disclosed the credit and reversal in the ER-I returns and that there was no suppression of facts therefore prayed to waive the penalty. 4. Countering this, the learned AR Sh. Sudhakar Reddy, reiterated the findings in the impugned order. He contended that the appellants had accepted the fact .....

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