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2014 (4) TMI 145 - AT - Central ExciseCENVAT Credit - Fraudulent CENVAT Credit taken - CENVAT credit taken was deposited before the issue of show cause notice - Penalty u/s 11AC - Bar of limitation - Held that - appellant was a party to the fraud committed in availing CENVAT credit on grey fabrics which was never received. Accordingly, CENVAT credit has been correctly denied by the lower authorities by invoking extended period - So far as extending the option of 25% reduced penalty under Section 11AC to the main appellant is concerned, it is observed that neither the adjudicating authority nor the first appellate authority has allowed this option to the main appellant. Accordingly, main appellant is allowed to avail the option of payment of 25% reduced penalty under Section 11AC of the Central Excise Act, 1944 if the entire amount of duty and interest along with 25% reduced penalty is paid within one month from the receipt of this order - there was clear-cut knowledge of the Partner Shri Biren H. Vekharia that credit is being taken fraudulently. Therefore, penalty imposed upon him has been correctly upheld by the first appellate authority - Decided partly in favour of assessee.
Issues:
1. Disallowance of CENVAT credit and imposition of penalties on the main appellant and partner. 2. Admissibility of CENVAT credit on grey fabrics. 3. Extension of reduced penalty option to the main appellant. 4. Imposition of penalty on the partner of the main appellant. Analysis: 1. The main appellant and partner filed appeals against the disallowance of CENVAT credit and penalties imposed by the Commissioner (Appeals). The main appellant had availed credit on invoices from non-existent suppliers. Statements revealed fraudulent practices of invoicing without actual receipt of goods. The demand was confirmed after investigation and show cause notice. The main appellant argued that penalties should not apply since the demand was paid before the notice, and the reduced penalty option was not granted. The Revenue contended that the appellants were aware of the fraud. The Tribunal found the credit inadmissible due to the forged invoices and upheld penalties on the main appellant and partner. 2. The admissibility of CENVAT credit on grey fabrics was scrutinized. The main appellant had taken credit based on invoices from non-existent suppliers. Statements confirmed the fraudulent nature of transactions. The Tribunal referred to a High Court case emphasizing the need for actual receipt of goods for credit eligibility. It was established that the main appellant was involved in a fraudulent scheme, justifying the denial of credit by the lower authorities using an extended period. 3. The option of a 25% reduced penalty under Section 11AC was not extended to the main appellant by the adjudicating authority. The Tribunal allowed the main appellant to avail this reduced penalty if the entire duty, interest, and penalty were paid within a month from the order receipt. 4. The imposition of a penalty on the partner of the main appellant was challenged. The Tribunal referenced a Bombay High Court case where penalties on partners were deemed separate from penalties on the firm. However, in this case, the partner was found to have clear knowledge of the fraudulent practices, justifying the penalty upheld by the first appellate authority. The appeal was rejected except for granting the reduced penalty option to the main appellant. This detailed analysis of the judgment addresses the issues of CENVAT credit disallowance, admissibility of credit, penalty imposition, and the extension of reduced penalties, providing a comprehensive overview of the legal proceedings and outcomes.
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