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TMI Blog2013 (8) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... redit had been availed by them in a fraudulent manner without receiving any goods and without any invoices - the assesse’s claim in their remark in the ER-1 return that amount was debited by them for payment of penalty imposed by CESTAT was false. Waiver of Pre-deposit – Prima-facie the assesse was not able to make out the case in their favor - Penalty equal to the fraudulently taken Cenvat credit would be attracted under Rule 15 (2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 – 2 crores were ordered to be submitted as pre-deposit – upon such submission rest of the duty to be waived till the disposal – Stay granted. - Appeal No. 293 of 2011 - - - Dated:- 4-6-2013 - Ms. Archana Wadhwa and Shri Rakesh Kumar, JJ. For the Appellant: Shri Naveen Bindal, Advocate For the Respondent: Mrs. Ranjana Jha, Authorized Representative (Jt. CDR ORDER Per. Rakesh Kumar :- The facts leading to filing of this appeal and stay application are, in brief, as under. 1.1 The appellant having their factory at B-15, Phase II, Focal Point, Ludhiana, has obtained Central Excise registration on 16/5/05 for manufacture of copper ingots, copper wir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f finished product to buyers outside the state, the investigating officers conducted inquiry with the Assistant Excise and Taxation Commissioner, Ludhiana, Government of Punjab, for furnishing ICC data for 2006-2007 in respect of the appellant regarding their purchases from outside the state of Punjab and sales to buyers outside Punjab. The Assistant Excise and Taxation Commissioner, Ludhiana vide letter dated 24/7/07 informed that during this period, as per the ICC check post data the appellant did not purchase any material from outside Punjab and their sales to buyers outside Punjab were also nil. From this it appeared that they were availing Cenvat credit without any valid documents and were showing fictitious sales by issuing bogus invoices. 1.3 Inquiries was also conducted with the parties from whom the appellant had shown purchase of goods in their sales tax returns. The details of which are given in para 10.5 to 10.5.15 of the show cause notice. Among the suppliers, except for Shri Inder Pal Singh, Partner of M/s Gujral Traders, Mandi Gobindgarh, other supplier denied having supplied any ingots and copper wire to the appellant. Shri Inder Pal Singh, however, claimed that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 25 of Central Excise Rules, 2004. Penal proceedings against Shri Navneet Aggarwal, Proprietor were dropped. 1.8 Against this order of the Commissioner, the present appeal has been filed along with stay application. 1.9 Consequent upon the above investigation, proceeding was also been initiated against the appellant for cancellation of their Central Excise registration dated 16/5/05, which had been cancelled by the Assistant Commissioner and the appeal filed by the appellant against the Assistant Commissioner order had been dismissed vide order-in-appeal dated 22/12/06 passed by the Commissioner (Appeals). The appellant had filed an appeal No. E/821/2007-SM against the Commissioner (Appeals) s order dated 22/12/06 and the same was disposed of by the Tribunal vide final order No. 857/2009 SM (BR) dated 20/07/2009 by which the matter was remanded to the original Adjudicating Authority for denovo decision after supplying them the required documents. 1.10 In the adjudication proceedings before the Commissioner, the appellant had claimed that they have deposited an amount of Rs. 6,52,21,257/- by a debiting the Cenvat credit account in August 2009 in pursuance of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority and, as such, there was no imposition of penalty in that order, that payment of this amount through Cenvat credit is meaningless, as the credit itself has been taken in a fraudulent manner without any documents, that the appellant up-till-now have not produced any documents on the basis of which such huge amount of Cenvat credit has been taken by them, that the appellant have committed a huge fraud by not only availing huge amount of Cenvat credit in a fraudulent manner without any invoices, but have also passed on this huge amount of credit to various persons without supplying any goods, as they have no manufacturing facility, that this action of the appellant would attract penalty under Rule 15 (2) of Cenvat Credit Rules, 2004 readwith Section 11AC of Central Excise Act and that in view of this, this is not the case for waiver from the requirement of pre-deposit. She emphasized that the appellants claim that they have paid an amount of Rs. 6,52,21,257/- towards penalty is without any basis and is a false claim. 5. We have heard both the sides and perused the record. 6. The appellant had taken Central Excise registration for manufacture of copper ingots, copper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would have taken the Cenvat credit. Though the appellant claim that as per their remark in the ER-1 return for the month of August 2009 they had paid an amount of Rs. 6,62,21,257/- towards penalty, no TR-6 challans in this regard had been produced and if this payment had been made by debiting the Cenvat credit amount, the same is meaningless, as all the evidence on record, prima facie, shows that the entire Cenvat credit has been availed by them in a fraudulent manner without receiving any goods and without any invoices. In fact, in the Tribunal s order No. 857/2009-SM dated 20th July, 2009 there was no orders regarding penalty and this order was only in respect of the cancellation of the registration certificate. Therefore, the appellant s claim in their remark in the ER-1 return for August 2009 that amount of Rs. 6,62,21,257/- was debited by them for payment of penalty imposed by CESTAT, New Delhi vide final order No. 857/2009-SM dated 20th July 2009 is false. 7. In view of the facts discussed above, we are of the view that this is not the case for waiver and this is the case where prima facie penalty equal to the fraudulently taken Cenvat credit would be attracted under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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