9911796707
TMI Blog2013 (9) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 4,08,473/- - Relying upon the case of Shree Shiv Vijay Processors Pvt. Ltd. [2010 (11) TMI 280 - CESTAT, AHMEDABAD], it is held that apart from using the said Modvat credit for payment of duty, the appellants have also paid an amount from the P.L.A. account. According to the appellant no prudent man will pay duty to the government without actually receiving the grey fabrics - This fact tilts the weight of the evidence in favour of the appellant – Decided in favor of Assessee. - E/159-160/2011 - A/10103-10104/2013-WZB/AHD - Dated:- 16-1-2013 - Shri M.V. Ravindran, J. Shri K.I. Vyas, Advocate, for the Appellant. Shri J. Nagori, AR, for the Respondent. ORDER Both the appeals are being disposed of by a common order as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of M/s. Deep Textiles, make paper transactions between M/s. Deep Textiles, the ficticious merchant exporter and Shiva Petrotex Pvt. Ltd. the Processor (the appellant in this case) as if grey fabrics were processed at the Process House of the appellant. Evidence collected show that appellant issued ARE-1 which is mere paper transaction. In his Statement dated 18-8-2004, Shri Shyam Sunder Maheshwari, Director of the appellant company stated that they had not received any job charges from M/s. Deep Textiles, for processing of the said grey fabrics and they were trying to trace out Shri Ashok Jhanwar, main beneficiary of M/s. Deep Textiles. 5. Appellant company and its Director and others were served with a Show Cause Notice which is dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlal Jhanwar, Shri Ashok Jhanwar, Shri Manohar K. Mali and Shri Mahesh Harlalka, separately each of them, under Rule 27 of Central Excise Rules, 2002. 6. Aggrieved by such an order, appellants preferred an appeal before the first appellate authority. The first appellate authority after following due process of law, concurred and upheld the order of the adjudicating authority. Hence these appeals. 7. Ld. counsel appearing on behalf of the appellants submits that the appellant herein is unnecessarily being penalized by upholding reversal of Cenvat credit availed by him. It is his submission that the issue involved in this case is directly covered by the judgment of this Tribunal in the case of Shree Shiv Vijay Processors Pvt. Ltd. - 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority in his impugned order in paragraphs 8 9 has recorded the following findings which are undisputed. 8. That credit was availed on the invoices of grey fabrics purportedly endorsed and supplied by M/s. Deep Textiles. Now M/s. Deep Textiles is found to be fake and ficticious and obtained rebate of more than one crores based on fraudulent export documents. May be several Officers have conspired in the fraudulent rebate scam and action has been taken against several Officers. So far as the appellant is concerned it ought to establish genuineness of transaction starting with receipt of grey fabrics. The law places burden of eligibility of credit on the assessee taking credit. It is common sense that a person taking credit aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authority, there has been categorical finding to indicate that factually there is no direct evidence that the fraud was committed by the appellant herein. The case of the Revenue is that there is a complicity of the appellant in his failure to bring any material on record to establish genuineness of transactions. It is nowhere mentioned that the appellant had failed to file monthly returns to the authorities. The appellant herein must have filed the monthly returns as there is a payment of duty by cash through P.L.A. which is evidenced from the findings of facts as reproduced hereinabove. If the appellant had filed the regular returns before the authorities, there is nothing on record to show that the appellant was directed to justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
