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2017 (1) TMI 647 - CESTAT NEW DELHI

2017 (1) TMI 647 - CESTAT NEW DELHI - TMI - CENVAT credit - alleged short found inputs - goods not received into the factory - invoice no. 23 dated 23.04.2009 without receipt of the goods - invoices where goods were returned back - invoice no. 201 dated 31.03.2008 with no record of the consignment passing Churu toll post - Held that: - as regards denial of Cenvat Credit of ₹ 61,14,698/- on alleged short found inputs, the only charge is that the goods were kept in the plot adjacent to the f .....

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giving them the benefit of Proviso to Section 11 AC of Central Excise Act, as no option was given to the assessee to pay 25% penalty - When the appellant can legally claim this benefit of payment of 25% penalty only as per provisions of Proviso to Section 11AC of Central Excise Act, the same is hereby allowed to them. - Cenvat Credit of ₹ 66,442/- against the invoice no. 23 dated 23.04.2009 without receipt of the goods - Held that: - The assessee company has not been able to disprove .....

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ng on the invoice itself etc - We do not find any reason and the evidence for non-acceptance of the proof of return of the goods submitted by the appellant company in the form of letter, marking on the invoices GRs etc - credit allowed. - Cenvat Credit of ₹ 2,33,694/- taken on invoice no. 201 dated 31.03.2008 with no record of the consignment passing Churu toll post - Held that: - it appears that mere non entry of the consignment at one of the toll posts cannot prove that the goods cov .....

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dent And Mr. Ashok K. Arya, Member (Technical) Sh. A.R. Madav Rao advocate for the appellant Sh. M.P. Sharma, AR for the respondent ORDER Per Ashok K. Arya 1. M/s Mittal Pigments Pvt Ltd., Sh. R.K. Agarwal, Sh. R.P. Agarwal and Sh. K.M. Sharma are in appeal against the order in original dated 22/03/2013 passed by Commissioner of Central Excise, Jaipur. 2. The appellant company states that the subject matter concerns with the following main issues. i. Denial of Cenvat Credit of ₹ 61,14,698/ .....

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as been represented by Sh. A.R. Madav Rao, Ld. Advocate and Revenue has been represented by Sh. M.P. Sharma, Ld. AR. 4. We have carefully considered the facts and the submissions of both the sides. 5. The issues concerned are being taken up for consideration and decision in the following subparas one by one. 5.1. Denial of Cenvat Credit of ₹ 61,14,698/- on alleged short found inputs:- The allegation against the appellant company is that the inputs namely Zinc and Lead Concentrate were not .....

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arty. The appellant relies on the Tribunals decision in the case of Munjal Showa Ltd. v CCE 2009 (116) ELT 684. 5.1.1. The appellant is not contesting the shortage found of Arsenic Metal weighing 2100 kg, valued at ₹ 1,37,100/- involving Central Excise duty of ₹ 20,195/-. as the appellant company has already reversed the Cenvat Credit in respect of said Arsenic Metal vide entry no. 942 dated 09.02.2011 in their RG 23A part-II. 5.1.2. After hearing rival submissions, it appears that i .....

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Showa Ltd. (supra), confirmation of the duty and penalty on this account is set aside. The assessee-appellant will get the relief accordingly. 5.2. Cenvat Credit of ₹ 35,47,178/- availed on 'goods not received into the factory' (on 18 invoices). The departments allegation is that the appellant company did not receive the goods against subject 18 invoices and they availed the credit for said goods without actually receiving the same. 5.2.1. The appellant pleads that entire amount o .....

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to pay 25% penalty. When the appellant can legally claim this benefit of payment of 25% penalty only as per provisions of Proviso to Section 11AC of Central Excise Act, the same is hereby allowed to them. 5.3. Cenvat Credit of ₹ 66,442/- against the invoice no. 23 dated 23.04.2009 'without receipt of the goods' :- The assessee company has not been able to disprove the allegation that they took the Cenvat Credit of ₹ 66,442/- without actual receipt of corresponding inputs. The .....

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goods were actually returned to them. The appellant says that original allegation in the SCN (Show Cause Notice) was for wrong availment of credit on 14 invoices where there was no proof that the goods were actually returned to them. The appellant pleads that in case of five invoices (no. 271, 293, 726, 727, 31) demand was dropped in the OIO. The appellant further pleads that in case of remaining nine invoices, they submitted a chart making it clear that customers returned the goods by a GR or .....

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ed by the appellant company in the form of letter, marking on the invoices GRs etc. Therefore Cenvat Credit of ₹ 11,08,524/- is hereby found to be admissible to the appellant company. 5.5. Cenvat Credit of ₹ 2,33,694/- taken on invoice no. 201 dated 31.03.2008 'with no record of the consignment passing Churu toll post':- The departments allegation is that there is no record of the subject consignment covered by invoice no 201 dated 31.03.2008 passing through Churu Toll Post, .....

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328) ELT 429 (Tri. Ahmed.) 5.5.1. By considering the rival submissions, it appears that mere non entry of the consignment at one of the toll posts cannot prove that the goods covered under the subject invoice were not received by the appellant company, unless there are other substantial corroboratory evidences to prove the charge of non-receipt of such goods. In the instant case, there is no material brought on record by the Department in support of allegation. When it so then the demand of Cenv .....

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