2010 (1) TMI 441

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..... arty has only given invoices without actually supplying the goods and confirmed demand of duty along with interest and imposed penalties. Commissioner (Appeals), on appeal by the party set aside the demand and penalty and held that the entire demand was time barred. Held that - the finding of the Commissioner that extended period of five years for demanding Cenvat credit cannot be invoked is erron .....

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..... iled with the request to consider the same while deciding the appeal by the Department. Heard the learned SDR. 3. The respondent is a manufacturer of switchgears Luminaries and home appliances and they were availing Modvat/Cenvat credit on duty paid inputs. The dispute relates to credit taken on the basis of invoices issued by one M/s. Swastik Industries. The original authority disallowed the cr .....

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..... the quantity of materials mentioned in the invoices. In view of the above, the statement on behalf of the assesses that they have received the material and paid for the same by cheque should not have been accepted. As there was no valid documents for taking the credit, the demand could be raised by invoking the extended period of limitation. He seeks setting aside of order of Commissioner (Appeals .....

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..... ssued by M/s. Swastik Industries cannot be considered as documents entitling the recipient of the documents eligible for taking the credit. The statements of these persons have not been retracted. It is not mere receipt of invoices that entitled the recipient to the Cenvat credit. It is obvious that receipt of material along with invoices is a must for entitling the recipient to take credit. Under .....

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..... od of five years for demanding Cenvat credit cannot be invoked is erroneous as M/s. Swastik Industries has not supplied the material, and therefore, the question of recipient receiving the material does not arise and fraud is writ large on the face of the transaction. In view of the above, the order of the Commissioner (Appeals) cannot be sustained. Various decisions relied upon in the paper book .....

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