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2016 (8) TMI 747 - CESTAT NEW DELHI

2016 (8) TMI 747 - CESTAT NEW DELHI - 2016 (340) E.L.T. 219 (Tri. - Del.) - Cross utilization of credit wrongly - AED(ST) alongwith interest and penalty - appellant received semi finished fabrics from its sister unit under cover of invoices - duty paid was shown to be 16% basic excise duty but the appellant on its own apportioned it in two parts and 50% was taken as credit under basic excise duty and the remaining 50% was taken as credit under AED (ST) in terms of Notification No. 17/2000-CE dat .....

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hen it may still have been in the process of being figured out as to how be depict the aggregate duty @ 16% ad valorem in the excise invoices. - One also cannot lose sight of the fact that the appellant did not stand to gain in any way whatsoever by doing such apportionment because it was not as if the BED credit would have lapsed if the entire duty shown in the invoices was taken as BED Credit because it was paying BED in cash to the tune of Crores of rupees after utilizing cenvat credit. .....

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09-Ex[DB] - Final Order No. 52479 /2016 - Dated:- 8-7-2016 - Mr. S.K. Mohanty, Member (Judicial) and Mr. R. K. Singh, Member (Technical) Mr. Prakash Shah (Advocate) for the Appellant Mr. G. R. Singh (DR) appeared for the Respondent ORDER Appeal has been filed against Order-in-Original dated 02.02.2009 in terms of which demand of AED(ST) amounting to ₹ 61,77,847/- was confirmed along with interest and penalty of ₹ 10,00,000/- was also imposed. The said demand was confirmed on the grou .....

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f duty as shown in the invoices and as a consequence, an amount of ₹ 61,77,847/- paid as AED(ST) by overdrawing from the cenvat credit account of AED(ST) as it would have gone into red by an equivalent amount if credit of 50% of duty shown in invoices was not taken under AED(ST). 2. The Ld. Advocate for the appellant pleaded/ contended as under: (i) Jalgaon Unit is its sister unit and was availing of Notification No. 17/2000-CE dated 1.3.2000 in terms of which the aggregate rate of duty is .....

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basic Excise Duty and AED(ST). The credit of AED(ST) so taken was utilized for paying AED(ST) ₹ 61,77,847/- which the adjudicating authority held as unpaid on the ground that such credit itself was not permissible. (ii) The observation of the Ld. Commissioner that the stamps on the invoices showing apportionment of duty shown in the invoices was put later on as an afterthought is not based on any evidence at all. (iii) The invoices have been duly defaced by Revenue and therefore the Commis .....

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on the said invoice. The Commissioner has stated that this stamp has been put subsequently. It is a settled principle of jurisprudence that the one who asserts has to establish, save when the statute expressly casts the burden on the accused which is not the case here. We do not find any basis in the impugned order to be able to sustain the finding/ observation of the adjudicating authority that the invoices were stamped subsequently as an afterthought. That apart it is pertinent to note that t .....

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