9911796707
TMI Blog2013 (7) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... er M/s Manu Metal by issuing invoices to his customers was passing on higher amount of credit than the duty actually paid on the goods. This was being done by mentioning duty in the invoices on the basis of higher amount of duty per unit than the duty per unit in the manufacturer's invoices. On this basis, the department has alleged that during the period of dispute, an amount Cenvat credit of Rs. 62,000/- was wrongly availed by the appellant. Initially when by issue of show cause notice dated 22/8/08 the proceedings were initiated for recovery of this credit alongwith interest and imposition of penalty, the same were dropped by the Deputy Commissioner vide order-in-original dated 22/9/09 on the ground that the appellant had no knowledge ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed deafer for which the action should have been taken against M/s Manu Metal, and the appellant cannot be penalised for the fraud committed by the registered dealer, that there is no evidence whatsoever indicating that the appellant had knowledge about higher duty having been passed on by the registered dealer, that even in the Commissioner (Appeals)'s order (para 5 of the order), it has been mentioned that the fraud has been committed by the dealer, that in view of this, there is no justification for assuming that the appellant was also a party to this fraud and applying the extended limitation period and also invoking the penal provisions of Section 11 AC, that, in this regard she relies upon the Tribunal's judgment in the case of CCE, Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid, Cenvat credit taken and utilised and the person from whom the inputs/capital goods were purchased is required to be kept, the burden of proof regarding admissibility of the Cenvat credit also lies upon the manufacturer, that in view of these provisions, it is for the manufacturer to ensure that the Cenvat credit in respect of any inputs or capital goods received by him is correctly taken, that in this case even during the period of one year the appellant had continued to take Cenvat credit on the basis of the invoices issued by the M/s Manu Metal wherein the higher amount of Cenvat credit had been passed on and that in view of this, the Commissioner (Appeals) has rightly concluded that the appellant are also a party to the fraud comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the registered dealer and as such, the appellant on the basis of the invoices issued by the registered dealer not were in a position to know as to whether higher credit has been passed on. However, it is also undisputed fact that the credit passed on by the registered dealer is more than the duty actually paid and it is this higher Cenvat credit, which has been availed by the appellant which subsequently was reversed. In my view this situation is similar to the case of CC (Preventive) vs. Aafloat Textiles (I) P. Ltd. decided by the Apex Court, vide judgment reported in 2009 (235) E.L.T. 587 (S.C.), wherein in a case where the importer had made duty free imports against DEPB strips purchased from another person and subsequently DEPB st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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