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2015 (11) TMI 1550 - CESTAT ALLAHABAD

2015 (11) TMI 1550 - CESTAT ALLAHABAD - TMI - Cenvat credit - allowability - Cenvat credit taken prior to the receipt of goods - utilised Cenvat Credit not available on the date of utilisation - appellant deposited interest for 2 days on the Cenvat amount and intimated to the revenue on 16/9/11 prior to issue of the SCN - Held that:- so far invoice number 95 dated 25/9/07 is concerned, there is no material alteration in the gate register or on the body of the invoice. Accordingly the demand rela .....

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, the demand in respect of invoice number 50 and 51 is upheld. - Period of limitation - Held that:- in such cases of manipulation and/deliberate avoiding the tax liability, I hold that extended period of limitation is available. Accordingly, the demand is held to be within time. - Decided partly in favour of appellant with consequential relief - Ex. Appeal No. 55613/14 - Final Order No.70218/2016 - Dated:- 2-11-2015 - Mr. Anil Choudhary, Member (Judicial) Shri N.L. Jangir, Adv. for the Appe .....

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dispatched by the supplier on 27/6/2007 at about 20.00 hours from Daman, and the goods were claimed to be received by the appellant on 30/6/2007 at Aligarh. Further goods dispatched vide invoice number 95 dated 25/9/2007 by the same supplier - Spring Merchandisers private Ltd, Daman, the goods were claimed to have been received on 29/9/2007. It appeared to revenue that on invoice number 50 and 51 dispatched by the same truck, some paper slip was pasted to hide the tax check post stamp which bea .....

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ellant in order to avoid paying the Excise duty in cash have manipulated their record and have taken the credit prior to the date of receipt of the goods and accordingly have utilised Cenvat Credit not available on the date of utilisation. 3. The appellant contested the show cause notice by filling reply. It is stated that the receipt of goods is not disputed. It was further contended that the Cenvat Credit utilised as on 30th June, 2007, could also have been used subsequently in July 2007 and s .....

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ed and further penalty of ₹ 3,62,008/- was imposed under Rule 15 read with Section 11AC of the Act. 4. Being aggrieved the appellant assessee preferred appeal before Commissioner (Appeals), who vide the impugned order was pleased to reject the appeal. As regards the ground of time bar taken by the assessee, that neither the proviso to section 11A was invoked nor the demand was confirmed in the order-in-original denying them credit with reference to the proviso to section 11A, thus, the who .....

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this Tribunal. The Id. Counsel for the appellant takes me through the xerox copy of the invoices and gate register. From invoice number 95 dated 25/9/2007 wherein the time of removal is entered as 18 hours (approx). The invoice contains the seal of the tax barrier at Ghaziabad dated 29/9/07 and the goods have been entered in the gate register vide number 447 dated 29/9/07. Prior to this entry, another number 447 was made which have been crossed out. In respect of invoice number 50 and 51, both .....

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as Entry Number 289 and Thereafter Entry Number 288 having been made showing the Entry for the invoices in question and the goods received on 30/6/07 and there is overwriting in the date. The Ld. Counsel explains that the pasting of the slips on the invoice is wholly attributable to the transporter and they have not manipulated in respect of the same. So far the issue of limitation is concerned, the ld. Counsel places reliance on the ruling in the case of Pushpam Pharmaceuticals company versus .....

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