TMI Blog2019 (3) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed - appeal allowed - decided in favor of appellant. - E/1/2012, E/198/2012 & E/213/2012 - FINAL ORDER No. 40462-40464/2019 - Dated:- 12-3-2019 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri R. Balagopal, Consultant for the Appellants Ms. T Usha Devi, DC (AR) for the Respondent ORDER Per Madhu Mohan Damodhar The facts of the case are that M/s. Ellen Industries (herein after referred to Ellen) are manufacturers of Mono Block Pumps and have a foundry unit functioning in their premises for casting requirements. Ellen were availing Cenvat credit on inputs viz., Pig iron, MS Scrap, Bearings, Silicon Sheets, Copper Coil etc. and were austentively purchasing the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944 on Leadsman, Meenakshi and Amman. In adjudication, the original authority vide order dated 25.11.2010 confirmed the proposals for recovery of cenvat credit as made out in the SCN, imposed equal penalty on Ellen under Rule 15(2) read with Section 11 AC and penalty of ₹ 2,60,000/- on Leadsman under Rule 25 ibid and interalia penalties of ₹ 55,000/- under Rule 25 ibid on Meenakshi and ₹ 3,70,000/- on Amman. In appeal, the Commissioner (Appeals) vide impugned order dated 13.12.2011 upheld the order of the original authority. Hence appeals E/1/2012, E/198/2012 and E/213/2012 filed by Ellen, Meenakshi and Amman respectively. 2. Today when the matter came up for hearing, on behalf of the appellants, Ld. Consultan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d invoices of duty paid scrap to only to enable wrong availment of cenvat credit thereon. She also submits that even the Managing Director had admitted to the modus operandi. Further, the statements recorded were not retracted by the persons concerned at any stage of adjudication. She also drew our attention to paragraph-4 of the SCN dated 24.08.2009 to canvass that the first dealer had procured MS wire, coil, etc., and subsequently, there was discrepancy with regard to the very description of the goods. 4. We have considered the rival contentions, perused the orders of the lower authorities and also have gone through the final orders of CESTAT referred to during the course of hearing. 5. We find the Ld. Consultant is correct in his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other first stage dealers. 8. The appellants have availed CENVAT Credit on the duty paid on the invoices. So also the entire transaction of the appellant has been through banks. Apart from certain assumptions based on the statements given by M/s. Leadsman Enterprises, there is no cogent evidence to prove that the appellants have availed wrong credit. The Hon ble Allahabad High Court in the case of Juhi Alloys Ltd. (supra) had occasion to consider a similar issue and had observed that Sub-clause (3) of Rule 9, though states that the manufacturer/producer of excisable goods shall take all reasonable steps to ensure that the goods on which he has taken CENVAT Credit has been suffered appropriate duty, does not mean that manufacturer/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otors Ltd. - 2013 (294) E.L.T. 394 (Jhar.), where it was held as follows :- ... Once a buyer of inputs receives invoices of excisable items, unless factually it is established to the contrary, it will be presumed that when payments have been made in respect of those inputs on the basis of invoices, the buyer is entitled to assume that the excise duty has been/will be paid by the supplier on the excisable inputs. The buyer will be therefore entitled to claim Modvat credit on the said assumption. It would be most unreasonable and unrealistic to expect the buyer of such inputs to go and verify the accounts of the supplier or to find out from the department of Central Excise whether actually duty has been paid on the inputs by the suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
