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TMI Blog2013 (12) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufacturer, subsequently having been affirmed that there was something wrong in the transaction - the appellant is in-eligible to avail CENVAT Credit - though the manufacturer of capital goods paid the duty, the same was not available as credit to the appellant as per the provisions of Rule 9(1)(b) of CENVAT Credit Rules, 2004. Period of limitation - The Revenue authorities have issued a show cause notice to the appellant on detecting irregularity within one year of the payment of Central Excise duty by the manufacturer and from the date of TR-6 challan which the manufacturer had paid the duty - the appellant may be in knowledge of entire transaction that has taken place which has resulted in clandestine removal of the goods by manufacturer – Decided against Assessee. - Appeal No.E/600/2009 - - - Dated:- 4-6-2013 - MR. M.V. RAVINDRAN, J. For the Appellant : Shri J.C. Patel, Adv. For the Respondent : Dr. J .Nagori, Addl. Commissioner (A.R.) JUDGEMENT Per: M.V. Ravindran This appeal is listed before me on remand from Hon'ble High Court vide order dt.03.07.2012 in Tax Appeal filed by the Revenue against the final order of the Tribunal dt.31.07.2009, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods and installed them. It is also the submission before the authorities that they have reversed the amount along with interest and there being no allegation of fraud and collusion against them, imposition of penalty was not justified. 5. Lower authorities did not agree with the contentions raised and confirmed the demand on the appellant along with interest and imposed equivalent amount of penalty under Rule 15 of CENVAT Credit Rules, 2002/2004 read with Section 11AC of Central Excise Act, 1944. 6. Ld. Counsel Shri J.C. Patel appearing on behalf of the appellant would submit that the evidence on record does not show that the appellant was aware or was party to the fraud played by the manufacturer M/s N.H. Harsora Pvt. Ltd. while clearing the goods on parallel invoices. It is his submission that none of the statements recorded by the Department shows that the appellant was aware as to the fact that the manufacturer of vessels M/s N.H. Harsora Pvt. Ltd. has not paid duty on such goods. It is his submission that the statement of Shri Pradeep Harsora, Director of the manufacturer M/s N.H. Harsora Pvt. Ltd. has never stated that the appellant was aware of the fact that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the dealer, in turn, has sold the same to the appellant for Rs.2 crores is not indicative of anything and will not have any bearing on the eligibility of CENVAT Credit of duty paid on capital goods nor does it show or indicate that the appellant has anything to do with the fraud played by the manufacturer in clearing the capital goods on parallel invoices without payment of duty. It is his submission that irrespective of price at which the capital goods were purchased by the appellant, CENVAT Credit is taken of the amount of Excise duty on the goods as shown in the invoices of the manufacturer as reflected in the invoices of the dealer. It is his submission that another reason for denying the CENVAT Credit to the appellant is that M/s Nerka Chemicals Pvt. Ltd. has made no other transactions except this isolated transaction of sale of capital goods to the appellant is in no way can be considered as knowledge of the fact in the hands of the appellant as M/s Nerka Chemicals Pvt. Ltd. has registered themselves in trading Plant Machinery and appellant had purchased the capital goods from them and have taken only CENVAT Credit based on the invoices wherein duty has been indicated. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case is incorrect as they have availed the CENVAT Credit on the documents which though indicated the payment of Central Excise duty; while the said goods were cleared clandestinely. It is his submission that the appellant herein was very much aware of the entire transaction as they have admitted in their statement that the amount paid by the appellant to M/s Nerka Chemicals Pvt. Ltd. was, in fact, routed or returned back by them from M/s United Phosphorus Ltd. for the outstanding dues. 8. I have considered the submissions made at length by both sides and perused the records. 9. The issue to be decided in this case is whether the appellant is eligible to avail CENVAT Credit of Rs.7,72,000/-, which is the Central Excise duty on the capital goods purchased by the appellant from the registered dealer M/s Nerka Chemicals Pvt. Ltd. or not on the fact that said capital goods were removed by the manufacturer M/s N.H. Harsora Pvt. Ltd. without payment of duty. 10. On careful consideration of the detailed submissions made by ld. Counsel, I find that though the appellant herein may not be aware of the clandestine nature of the goods removed by M/s N.H. Harsora Pvt. Ltd., it is also p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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