TMI Blog2016 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the goods were actually received by the appellant. Further, the extended period has rightly been invoked as the appellant has suppressed the facts from the department that he was availing credit on the RBA series of invoices. - Decided against the appellant - E/2404/2010-SM - Final Order No. 20664/2016 - Dated:- 26-8-2016 - Shri S. S. Garg, Judicial Member Mr. B. N. Gururaj, Advocate For the Appellant Mr. Ajay Saxena, Commissioner(A.R.) For the Respondent ORDER Per S. S. Garg The present appeal is directed against the Order-in-Appeal No. 42/2010 dated 28.09.2010 passed by the Commissioner (Appeals), vide which he has upheld the Order-in-Original and rejected the appeal of the appellant. 2. The brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat Credit Rules, 2004. In these background of the facts, a show-cause notice dated 31.8.2007 was issued which was adjudicated by the Joint Commissioner of Central Excise vide his order dated 27.11.2007 disallowing the Cenvat Credit availed by the appellant on the rejected/returned goods and demanded interest under Section 11AB and penalty as per Section 11AC was invoked while invoking the extended period under proviso to Section 11A of the Central Excise Act, 1944 read with Rule 14 of the CCR, 2004. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) and the appellate Commissioner vide his order dated 07.3.2008 upheld the order-in-original. 4. Aggrieved by the said order, the appellant filed appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not an issue alleged in the show-cause notice and therefore, basis for denial of Cenvat credit traverses beyond the scope of show-cause notice. He further submitted that due to the limitations imposed by ERP system, the appellant had to take credit on RBA invoices, which were relatable to the original Excise invoice. He further submitted that the appellant is entitled to take credit against the assessee s own duty paying documents as has been held in the following cases : (i) Jindal Photo Ltd. Vs. C.C.E.[2009 (247) E.L.T. 730 (Tri.-Ahmd.)] (ii) Hitesh Plastic Pvt. Ltd. Vs. CCE C. [2009 (243) E.L.T. 419 (Tri.-Ahmd)] (iii) BAPL Industries Ltd. Vs. CCE [2006 (198) E.L.T. 587 (Tri.-Chennai)] He further submitted that the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory, the adjudicating authority has decided that it is not possible to allow the Cenvat credit in the absence of any evidence establishing the fact of receipt of returned goods to the factory. Even at the appellate stage, the appellant has not produced any additional documents/evidences to prove that the returned / rejected goods have been received into the factory. In the absence of any corroborative evidences, it is not possible to allow the cenvat credit in respect of the said four consignments. It is pertinent to note that wherever the appellant has been able to produce the documents correlating the return of the goods, he has been given benefit of the same and wherever the appellant has not been able to produce any documen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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