2010 (11) TMI 819

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..... en the credit on a duty paying document which is not in dispute and same has been cleared after processing by paying duty on the same at the time of clearance. In that situation, if there is an allegation that the appellant has taken the credit at bona fide belief same is to be dealt with in accordance with the C.B.E. that is to be taken against the supplier of the goods. On the identical facts, this Tribunal has already held that demand is not sustainable in the appellant’s own case vide order dt. 11-10-2007, which has been accepted by the department, appellant has taken the credit on the duty paid invoice in accordance with the law. In the facts and circumstances of the case, the demand, interest and penalty are not sustainable. According .....

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..... He also submitted that the allegation made by the department that the said goods has not received in the factory of the appellant is baseless as they have not physically found in the factory of the appellant that these goods were not used in their manufacturing of their final product. Furthermore before the processing the said goods, appellants carried out the quality test of the input procured by them as per the invoice. He further submitted that there is no allegation that the appellants had not received the impugned goods against the duty paid invoice and there is also no allegation that they have not discharged their duty liability. He further submitted that in the appellant's own case on identical facts this Tribunal Vide Order No. A/ .....

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..... for the same without receiving the goods supplied by M/s. IIL which was cleared against payment of duty. These facts have been admitted by both the dealers i.e. first stage dealer and the second stage dealer (supplier to the appellant). In that case, the department has been able to prove that the credit has been taken by the appellants without receiving the goods. Hence the impugned order are sustainable. 5. On careful examination of the submission made by both sides. I find that in this case it is not disputed by both the parties that the appellants has not received the inputs against the duty paying document. Only dispute in this case is that the inputs which were received by the appellant are not those inputs which are mentioned in .....

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