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Commissioner of Central Excise Thane – I Versus M/s. Century Rayon

2015 (3) TMI 1210 - BOMBAY HIGH COURT

Reversal of Cenvat credit - no disclosure made that M/s. BPCL the supplier of the inputs was visited with the penalty under Rule 173 Q - Held that:- both the show cause cum demand notice to M/s. BPCL, and the Order-in-original passed against it do not contain the allegations and finding that there was any willful mis-statement or suppression of facts by M/s. BPCL or contravention of the provisions of the Central Excise Act, 1944, or the Rules framed thereunder with an intent to evade payment of .....

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er Rule 173 Q, the inferences drawn by the adjudicating authority, cannot be sustained. Those were mere conjectures and surmises on the part of the adjudicating authority. Since the ingredients of Rule 7(b) of the Cenvat Credit Rules were not attracted, the Order-in-original was rightly set aside. We do not see how the substantial questions of law can be answered except by upholding the order of the Tribunal. - Decided against the Revenue - Central Excise Appeal No.117 OF 2005 - Dated:- 11-3-201 .....

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the credit admissible? 2) Whether CENVAT can be done when SCN issued to M/s. BPCL does not mention any suppression of fact or willful mis-representation with intent to evade payment of duty for application of Rule 4(b) of the CENVAT Credit Rules, 2002? 3) Whether the adjudicating authority, having jurisdiction over purchaser of inputs, can deny CENVAT credit availed on the strength of supplementary invoices towards payment of differential excise duty when there is a specific mention in the Order .....

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ear to us. 3 We proceed on the footing that there is no contrary order of this Court on any identical issue. The above questions have been termed as substantial questions of law by Ms. Shah. She submits that the supplier of inputs to the present respondent assessee was M/s. Bharat Petroleum Corporation Limited. The asseessee is in the business of textiles. One of the inputs and which was acquired was sulfur. M/s. BPCL supplied the sulfur by clearing that product or goods at nil rate of excise du .....

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its that once such is the position and factually undisputed, then, the cenvat credit availed of by the present assessee respondent before us, was not available. Ms. Shah relies on Rule 7(b) of the Cenvat Credit Rules, 2002. She submits that on the strength of the supplementary invoices issued by M/s. BPCL, cenvat credit was availed of by the present assessee. However, that was without a disclosure that M/s. BPCL the supplier of the inputs was visited with the penalty under Rule 173 Q. That would .....

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d facts or contravened any provisions of the Act or Rules thereunder with intent to evade payment of duty. In the circumstances, the Tribunal's order suffers from non application of mind and should be set aside. 4 Mr. Prakash Shah appearing on behalf of the assessee supports the impugned order. He submits that the order may be not containing elaborate reasons, but the essential finding is that in the show cause notice issued to the present assessee, the conclusions recorded in the orders pas .....

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