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TMI Blog2010 (12) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... o conclude that the assessee is a party to the fraud. On behalf of the revenue, nothing has been pointed out to dislodge the concurrent findings of fact recorded by both the appellate authorities, it is apparent that the conditions precedent for invoking the provisions of Rule 13(2) of the Rules are clearly not satisfied. In the circumstances, no infirmity can be found in the impugned order of the Tribunal so as to warrant interference, appeal is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... (231) E.L.T. 3 (S.C.)]? 4. Whether in the facts and the circumstances of the case, the Ld. Tribunal is justified in the eye of law in not holding that the said unit has contravened Rule 3(1), 3(3), 7(2), 7(4) of the CENVAT Credit Rules, 2002 and thereby suppressed the facts from the department with an intention to evade the payment of the excise duty? 2. The respondent-assessee was registered as a manufacturer of man-made fabrics. It had availed of Cenvat credit on grey fabrics during March 2004. Subsequently, investigations revealed that the suppliers of grey fabrics who had issued the invoices, on the basis of which the assessee had availed credit, were found to be non-existent/fake/bogus. Accordingly, a show case notice came to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations had been carried out to bring out that the assessee was party to fraud or that the Cenvat Credit had been availed in contravention of the Rules with intention to evade central excise duty. It was observed that though the Adjudicating Authority has concluded that the acts and contravention were committed by the assessee by suppression of facts with intent to avail inadmissible credit, there was no mention of any specific suppression. According to the Commissioner (Appeals), the conclusion of suppression of facts with intent to avail wrong credit is based on conjunctures and surmises and not on any solid evidence, and as such, the finding of the Adjudicating Authority based on which mandatory penalty had been invoked was not just and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or ten thousand rupees, whichever is greater. (2) 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also been recorded that the findings of the Adjudicating Authority that there is suppression of facts with intent to avail wrong credit is based on conjectures and surmise and not on solid evidence. On behalf of the revenue, nothing has been pointed out to dislodge the concurrent findings of fact recorded by both the appellate authorities. In the light of the aforesaid concurrent findings of fact recorded by both, the Commissioner (Appeals) as well as the Tribunal, it is apparent that the conditions precedent for invoking the provisions of Rule 13(2) of the Rules are clearly not satisfied. In the circumstances, no infirmity can be found in the impugned order of the Tribunal so as to warrant interference. 9. In the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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