9911796707
TMI Blog2013 (12) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant - the credit has been reversed when the audit pointed out the same – it cannot be said that there was suppression of fact or misdeclaration with intent to evade duty unless it is shown by way of statements of the concerned officers of the company or any other evidence to show that there was an intention on the part of the appellant to evade duty or to suppress facts - no investigation has been conducted as regards the manipulation of any records. There was considerable force in the argument that no penalty could have imposed under Section 11AC in the absence of determination of CENVAT credit to be reversed as per the provisions of Section 11A (2) of Central Excise Act 1944 - penalty under Rule 15(1) as well as penalty under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposing to demand the CENAVT credit availed by the appellant with interest by invoking extended period under proviso to Section 11A of Central Excise Act 1944. Penalty was also proposed under Rules 15(1) and 15(2) of CENVAT Credit Rules 2004. The original adjudicating authority held that there is no need to demand the duty in this case since when the goods were received back by the appellant they could have taken the credit back and all the goods sent by them have been received back even though beyond 180 days and therefore it would be the sufficient if the interest for the period of delay is paid by the appellant. He also imposed penalty under Rule 15(1) and Rule 15(2) amounting to Rs. 1,12,000/- and amount equal to the CENVAT credit wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an observation that original adjudicating authority has recorded a finding that there was tampering of the documents, he submits that original adjudicating authority has not recorded any evidence which clearly shows that there was tampering of the records. Para 18 of the original adjudicating authoritys order reproduced the observation in the show-cause notice which is based on the audit findings and which show that the date on the delivery challans for sending capital goods were tampered with and the capital goods had actually been sent earlier than the date shown in the delivery challan. While original adjudicating authority in para 19 speaks of a verification done by the jurisdictional Assistant Commissioner and reproduced in the middle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entries relating to 2 nos. of cranes with electric hoist and 3 tons capacity crane covering these entries in the table available in para 19 of the order-in-original. As can be seen from the delivery challans, there was only one date available and there was no evidence of tampering in the photocopy produced before me. In any case I find myself in agreement that the learned counsels submission if there was tampering and if the appellant had shown a later date as regards dispatch of capital goods to their job-workers then the actual date of dispatch, the table should have had another column showing the actual date on which capital goods were sent to the job-worker and date of the delivery challan and the date on which goods were received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was an intention on the part of the appellant to evade duty or to suppress facts. In this case no investigation has been conducted as regards the manipulation of any records. If there is no manipulation of records and in the absence of any recording of statements of the officer of the company or in the absence of any evidence, it cannot be said there was suppression of fact or miss-declaration. Further I also find considerable force in the argument that no penalty could have imposed under Section 11AC in the absence of determination of CENVAT credit to be reversed as per the provisions of Section 11A (2) of Central Excise Act 1944. There are decisions to the effect saying that unless there is a determination of the duty under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
