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TMI Blog2020 (2) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit on 13 nos. of Invoices between the period from June 2004 to July 2004. Asst. Commissioner (Preventive), Central Excise, Thane-I, Commissionerate reported that appellant's supplier M/s. Accelerate Synthetics Pvt. Ltd., Bhiwandi, Thane had fraudulently availed Cenvat Credit on the strength of fake invoices issued by non-existing suppliers. Accordingly investigation was conducted in the appellant's unit. Statement of its proprietor Dasrath Sigh Rajpurohit was recorded on 12-1-2009 to 19-3-2009 who confirmed non delivery of goods directly by supplier M/s. Accelarate Synthetics Pvt. Ltd. for which duty demand of Rs. 25,544/- along with interest and equivalent penalty under various provisions of Central Excise Act read with rule 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, with reference to judicial decision reported in 2016 (336) E.L.T. 97 (Tri. Mumbai of Tel Brands (India) Pvt Ltd. v. commissioner of Cus. (Import), Mumbai and 2018 (363) E.L.T. 390 (Tri. Del.) of Commissioner of C. Ex. Delhi-I v. B.B. Steels, he submitted that retraction and its ground were communicated to the departmental authority within 15 days of such recording of statement for which no reliance can be place on those evidence and accordingly order passed by the Commissioner (appeals) is required to be set aside. 4. In response to such submissions, Learned Authorised Representative for the respondent Department argued in support of the reasoning and rationality of the order passed by the Commissioner (appeals) and placed his reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal appellant M/s. Accelerate Synthetic Pvt. Ltd. had gone for re-adjudication is un-related to this instant appeal as genuiness of the invoices received and availement of Cenvat Credit by M/s. Accelerate Synthetics Pvt. Ltd. would be determined in that re-adjudication process. Here the appellant is before this Tribunal for determination of its eligibility to avail Cenvat Credit on the basis of the invoices raised by its supplier and not by the original supplier to its supplier and secondly, if such availment is permissible in the event of non-removal of goods. 7. Going by the text of notification no. 34/2003-C.E, under para 1 (2)(a) it has been clearly mentioned that first or second stage dealer may, at his option, remove such goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional statement after retraction of such confession. However, even if such statement is accepted to be true, still notification no. 34/2003-C.E provides a shield since such removal of goods, in view of para 1(2)(a) has made the compliance provision optional. Therefore, denial of availment of Cenvat Credit on the ground that no physical movement of goods had taken place is also not in conformity to the procedure meant to be followed by the deemed textile manufactures. Hence the order.
ORDER
9. The appeal is allowed and the order No. YDB/7/M-I/2011 dated 23-1-2012 passed by the Commissioner of Central Excise (Appeals), Zone-I is hereby set aside.
(Order pronounced in the court on 07-01-2020) X X X X Extracts X X X X X X X X Extracts X X X X
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