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2019 (7) TMI 628

..... e appellant has already availed drawback of ₹ 20 lakhs. Then the appellant cannot avail credit of inputs/input services. The credit availed is, therefore, wrong and not eligible to the appellant - The order disallowing the credit and recovery of the same is legal and proper Penalty - HELD THAT:- The appellant, who is doing major clearance as export cannot in any way benefit by availing the c .....

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..... earances for home consumption. The department was, therefore, of the view that the appellant is not eligible for availing Cenvat credit on input/input services. Show-cause notice, dated 18.03.2016 was issued proposing to demand an amount of ₹ 42,35,028/- being the wrongly availed credit along with interest and also for imposing penalty. After due process of law, the original authority confir .....

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..... can avail credit and seek refund of the same, they availed credit of ₹ 42,35,028/- in respect of export clearances and applied for refund of the unutilized credit as under Rule 5 of Cenvat Credit Rules, 2004. The department pointed out that the appellant is not eligible for refund as they have already received drawback of ₹ 20 lakhs. The appellant then withdrew the refund claim. Later .....

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..... . Credit is now remaining in the Cenvat account of the appellant, which remains unutilized. 3. The learned Authorised Representative Shri L. Nandakumar appeared and argued on behalf of the department. He submitted that the appellant is not eligible to avail credit in case they are availing the facility of drawback for export clearance. The double benefit of Cenvat credit as well as drawback cannot .....

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..... and facts I hold that the order disallowing the credit and recovery of the same is legal and proper. However, the penalty of ₹ 4,23,503/-, in my view is unwarranted. The appellant, who is doing major clearance as export cannot in any way benefit by availing the credit. They availed the credit on opinion that it would be more beneficial than drawback. They did not suppress the fact of availi .....

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