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TMI Blog2013 (8) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... g Road, Surat. The said M/s Deep Textiles (declaring itself as merchant exporter) filed 39 claims of rebate against certain export documents (of processed fabrics) and ARE-1s and obtained an amount of Rs.1,24,19,869/- as rebate from Divisional Officers of Division- II ,III, IV and V of Surat-I Commissionerate. In subsequent investigations, it came to light that the said M/s. Deep Textiles is non existent ficticious Organization and that forged and fraudulent export documents were submitted to claim rebate. Detailed investigations were conducted to identify the real beneficiaries of the Fraudulent Rebate. 3. The impugned Order relates to 4 rebate claims (out of 39) involving an amount of Rs.4,61,250/-issued by Division-Il. Shiva Petrotex Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004) read with provisio to Section 11A(1) of Central Excise Act, 1944. (ii) I confirm the demand interest at the appropriate rate on the aforesaid amount of Rs.4,61,250/- under Rule 72 of Cenvat Credit Rules, 2002 (Now Rule 14 of Cenvat Credit Rule 2004) read with proviso to Section 11AB of Central Excise Act, 1944 and order for recovery of the same. (iii) I impose the penalty equal to the amount of wrongly availed credit,amounting to Rs.4,61,250/- on the unit under Rule 13 of Cenvat Credit Rules, 2002 (Now Rule 15 of Cenvat Credit Rules, 2004) read with Section 11AC of Central Excise Act,1944. However if the unit pays the above demanded amount of duty and interest within thirty days of communication of this order the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no direct evidence that the appellant had committed the fraud. 8. Ld. D.R. reiterates the findings of the lower authorities. 9. It is to be noted that as per show cause notice dated 16.10.08, the lower authorities have directed the appellant to show cause as to why in paragraph No.37 of show cause notice, to show cause as under: 37. This show cause notice is in respect of wrong availment of deemed credit of excise duty amounting to Rs.4,61,250/- only by M/s. Shiv Petro Tex P. Ltd. in respect of the processed fabrics cleared/supplied to M/s. Deep Textiles, C-1/63, Kailash Nagar, Sangrampura, Surat/1177, Ambaji Market, Ring Road, Surat. For any other irregularities in respect of M/s. Shiv Petro, if found, separately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation from the purported suppliers. Though there is no direct evidence that the fraud was committed by the appellant, the complicity of the appellant is evident from its failure to bring any material on record to establish genuineness of transactions. Further the purported merchant with whom dealings are done is fake and non existent. 9. Under the impugned order the whole of the duty of Rs.4,61,250/- is confirmed as wrong credit. The said amount of Rs.4,61,250/- is the duty on invoices of processed fabrics corresponding to the grey fabrics. The appellant has claimed that Rs.52,777/- was paid through P.L.A. Thus the credit amount on impugned grey fabrics is Rs.4,08,473/- (461250 - 52777). Therefore, the amount of wrong credit to be recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant's premises. If the said stand of the Revenue is accepted, it will lead to the fact that no duty payment on the final product was required. However it is seen that apart from using the said modvat credit for payment of duty, the appellants have also paid an amount of Rs. 66,533/- from the PLA account. According to the appellant no prudent man will pay duty to the government without actually receiving the grey fabrics. I agree that this fact tilts the weight of the evidence in favour of the appellant. In any case by paying duty on the final product, the deemed credit so availed stands reversed by the appellant, in addition to payment of duty of Rs. 66,000/- (approximately) out of PLA. 13. In view of the foregoing, respectfu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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