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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 ..... ty to the government without actually receiving the grey fabrics - The fact tilted 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 out of PLA. SHREE SHIV VIJAY PROCESSORS PVT. LTD. Versus COMMR. OF C. EX., SURAT [2010 (11) TMI 280 - CESTAT, AHMEDABAD] - Factually there was no direct evidence that the fraud was committed by the appellant herein - The case of the Revenue was that there was a complicity of the appellant in his failure to bring any material on record to establish genuineness of transactions - It was nowhere mentioned that the appellant had failed to file monthly returns to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Pvt. Ltd., Block No.238, Surat- Bardoli Road, Village -Jolwa, Taluka- Palsana, Dist. Surat the appellant company in this case are the purported manufacturer of the export goods/processed fabrics who also issued the relevant ARE1s. 4. Investigations have revealed that rebate amount was availed fraudulently without any actual exports. The modus operandi was to obtain certain invoices of grey fabrics in the name of M/s Deep Textiles, make pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit,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 penalty amount will stand reduced to Rs.1,15,313/- provided the reduced penalty amounting to Rs.1,15,313/- is also paid within thirty days of communication of this order. (iv) I impose the penalty of Rs.5,000/- on Shri Shyam Sunder Maheshwari, Director of the unit under Rule 27 of central Excise Rules, 2002. (v) I impose the penalty of Rs.5,000/- on Shri Rashmi Natuarlal Patel, Shri Modanlal Jhanwar, Shri Ashok Jhanwar, Shri Manohar K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 action will be taken under the law for the time being in force. 10. It can be seen from the above reproduced paragraph in show cause notice that it was in respect of a wrong availment of deemed credit by the appellant herein and penalty was also proposed on the co-appellant herein. When the appellant preferred an appeal before the first appellate authority, the first appellate authority in his impugned order in paragraph 8 9 has reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recovered is determined as Rs.4,08,473/-. The appeal of the company fails on merits. However, the duty confirmed is reduced to Rs.4,08,473/- from Rs.4,61,250/-. Interest is payable on reduced amount. Consequently penalty is also reduced to Rs.4,08,473/- 11. It can be seen from the above reproduced findings of the first appellate authority, there has been categorical finding to indicate that factually there is no direct evidence that the frau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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