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2019 (8) TMI 385

..... ty - HELD THAT:- Allegation against the appellant is that it had availed Cenvat Crdit in excess of its availability to the appellant for which Rule 14 is violated, though no such wording is available in Rule 14 called “availed”. On the other hand, it uses terms like “Cenvt Credit taken”, “utilised wrongly”, “erroneously refunded”. “Availment” by its Dictionary meaning would mean “to make use of something” but the record reveals that the amount was taken in the books of accounts in excess of what was available to the appellant. A bare reading of Rule 14 would clearly lead to a conclusion that Cenvat Credit after being utilised wrongly can only be recovered as per provisi .....

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..... confirmed in the order-in-original & order-in-appeal, hence the Appeal. 3. In the memo of appeal and during the course of hearing of appeal, Learned counsel for the Appellant Mr. Piyush Chhajed & Mr. Doshi, CA, in referring to judicial decisions reported in the case of Mega Cabs Private Ltd, 70 taxmann.com 51 Honourable Delhi High Court, Ahluwalia Construction Group, 52 S.T.R. 456 (Del.) Honourable Delhi High Court, Magma HDI General Insurance Company Ltd. [2016] 71 taxmann.com 264 Honourable Calcutta high Court, Travelite (India) 2014 (35) S.T.R. 653 (Del.) Honourable Delhi High Court, concerning legality of Audit conducted by the departmental Officier under Rule 5A, submitted that there was no excess availment of credit as can be .....

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..... rning non-utilisation of Cenvat Credit as the said Supdt. was having jurisdiction over Ambernath unit while ISD unit is located at Andheri. It is also pointed out by him that appellant failed to produce any duty paying document as per Rule 9 of the Cenvat Credit Rules for which demand was rightly made that needs no interference by this Tribunal. 5. Heard from both the sides at length on the other day and perused the case record. Contention of the appellant was that it had made wrong entry of Cenvat Credit at two places namely at ISD column and at the manufacturers column. The finding of the Learned Commissioner (appeals) is that appellant was not registered as ISD. However, going by para 1 & 3 of the show cause notice as well as the ord .....

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..... amount, the assesse was required to distribute the amount as shown in column D of the above table and balance was available to them as Service provider. However, the assesse availed entire credit as available in Cenvat register in their Service provider return and again availed Cenvat credit which they were supposed to distribute as ISD. This has resulted in double availment of Cenvat credit in their ST 3 return. 6. This being the factual aspects, the legality of such demand is now required to be looked into. Allegation against the appellant is that it had availed Cenvat Crdit in excess of its availability to the appellant for which Rule 14 is violated, though no such wording is available in Rule 14 called availed . On the other hand, it u .....

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