9911796707
TMI Blog2010 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... A Tribunal has erred in the eye of law in holding that the there is no evidence put forth by the Revenue to establish that the said unit had connived with the suppliers and availed the Cenvat Credit, ignoring in entirety that the fake, fabricated and forged invoices in the name of the non-existent party was the base upon which it has wrongly availed the Cenvat Credit and utilized the same for the payment of the duty in respect of the excisable/finished goods? (B) Whether in the facts and the circumstances of the case, the Ld. Tribunal is justified in the eye of law in holding that the evidence put forth by the Revenue is not sufficient to arrive at the conclusion of suppression of facts/fraud or mis-declaration? (C) Whether in the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. The assessee carried the matter in appeal before the Commissioner [Appeals], who vide order dated 3 rd October, 2008 partly allowed the appeal insofar as the same related to penalty and confirmed the demand of credit wrongly availed, and interest. The Commissioner [Appeals] modified the Order in Original by substituting the penalty imposed as penalty of Rs.1,92,898/- under Rule 13 (1) of the Cenvat Credit Rules, 2002 [now rule 15(1) of the Cenvat Credit Rules, 2004]. Being aggrieved, the Revenue preferred appeal before the Tribunal which came to be dismissed. 3. Assailing the impugned order of the Tribunal, the learned Standing Counsel for the appellant has reiterated the reasoning adopted by the Adjudicating Authority. 4. On a perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof. 5. The Tribunal, in the impugned order has confirmed the findings recorded by the Commissioner [Appeals] and has held that the assessee can be found fault with for not taking reasonable steps as contemplated under rule 7 of the Rules, but it cannot be held liable to pay penalty under section 11AC of the Act. 6. Thus, both the Commissioner [Appeals] as well as the Tribunal have, upon appreciation of evidence on record, found, as a matter of fact, that the evidence on record was not sufficient to conclude that the assessee was a party to the fraud and that there was nothing to indicate that the assessee had availed or Cenvat credit in contravention of the Rules with intention to evade central excise duty. Based upon the aforesaid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the principles of natural justice." 8. On a plain reading of rule 13 (2) of Cenvat Credit Rules, 2002, it is apparent that the same can be invoked in a case, where the CENVAT credit has been taken or utilized wrongly on account of fraud, willful mis-statement, collusion or suppression of facts, or contravention of any of the provisions of the Act or the rules made thereunder with intention to evade payment of duty, in which case the manufacturer would be liable to pay penalty in terms of section 11AC of the Act. Thus, a condition precedent for invoking the provisions of sub-rule (2) of rule 13 of the Rules there should be a finding to the effect that the manufacturer has taken or wrongly utilized the CENVAT credit on account of frau ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
