TMI Blog2005 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... that where a manufacturer has taken a credit by reason of fraud, wilful mis-statement, collusion or suppression of fact or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty extended period of 5 years will be available for issuing show cause notice. It is apparent from the wordings of clause (ii) that fraud etc. has to be committed by the person against whom the show cause notice is being issued and not by the person at large. We, therefore, set aside the disallowance of the Modvat credit and recovery of the said amount from the appellants. All the appeals are thus allowed. The provisions of Section 35H contemplate a reference on a question of law which would arise from the order of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be issued for making a reference. Appeal is accordingly dismissed, while leaving the parties to bear their own costs. - SWATANTER KUMAR AND MADAN B. LOKUR, JJ. Shri Rajiv Shakdher, Advocate, for the Petitioner. None, for the Respondent. JUDGMENT CM No. 02/2003 in Central Excise Reference Application No. 2/2003. This is an application for condonation of delay in filing the reference application under Section 35H(1) of the Central Excise Act, 1944 (hereinafter referred to as the Act). For the reasons stated in the application, which is supported by an affidavit of Commissioner of Central Excise, Delhi, specifying the reasons for delay of one day in filing of the present reference, the application is condoned. We are of the opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, premises of the industries were inspected and statements of Mr. Sanjay Gupta and Smt. Meenu Pathak, Proprietor of the industry, was also recorded under Section 14 of the Act. Commissioner, Central Excise vide his detailed order dated 30-10-2001 recorded finding adverse to the industry and held that the Modvat credit amounting to Rs. 46,78,642/-, wrongly availed on fake and bogus invoices by the industry is disallowed and ordered recovery of the said amount under Rule 57-I of the Rules read with Section 38 of the Act. Interest due was charged on the said amount, while imposing penalty of the amount, equal to amount for which the duty was evaded and imposed a further penalty of Rs. 25 lacs on Mr. Sanjay Gupta under Rule 209A of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellate Tribunal and disallowance of Modvat credit and recovery consequently thereupon was set aside, vide judgment dated 18-12-2002. The relevant part of the order reads as under :- We have considered the submissions of both the sides. The Revenue has not challenged the findings contained in the impugned Order to the effect that the allegation of non-receipt of goods by the Appellants has not been established beyond doubt in view of the fact that Prerna Metal Inds. had bought material from Delhi Aluminium Corporation which was substantial in nature. Once the Revenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying particulars the Modvat credit cannot be denied to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent from the wordings of clause (ii) that fraud etc. has to be committed by the person against whom the show cause notice is being issued and not by the person at large. We, therefore, set aside the disallowance of the Modvat credit and recovery of the said amount from the appellants. All the appeals are thus allowed. 6. It is clear from the above findings that the Appellate Tribunal while relying upon the findings recorded by the Commissioner came to the conclusion that there was no fraud played by the industry and in fact there was no evidence on record to suggest even active involvement of the industry. In the order of the Commissioner, specific reference has been made to another concern, namely Priyadarshini Paper Limited and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration before us. The appeal relates to factual aspects which have been concluded by the Authorities in favour of the Assessee. We find no merit in the appeal. The same is dismissed. 7. The provisions of Section 35H contemplate a reference on a question of law which would arise from the order of the Tribunal. Every finding recorded by the Tribunal cannot be questioned before the High Court by way of reference. The findings which have been recorded are primarily findings of fact and in similar cases the view taken by the Tribunal has already been affirmed by this Court, as such we do not see any scope for interfering in the present reference application. 8. The case of fraud or the case being of fake and bogus invoices, it was obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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