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TMI Blog2011 (10) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the discussions are sufficient to show that the decision would not have been different if these aspects were considered separately and discussed. Therefore the order does not require modification as far as this aspect is concerned - Rectification denied. If the Cenvat credit amount demanded, interest thereon is paid with 25% of Cenvat credit demanded towards penalty within thirty days of the receipt of this order, the assessee shall not be required to pay the balance 75% of the penalty. It is made clear that if duty and interest and penalty to the extent of 25% of duty is not paid within thirty days of the receipt of this order, the assessee shall be required to pay the Cenvat credit amount demanded, interest thereon and penalty equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of applicant claim on merits as referred in Para 13 of their Written Submissions. The said issue was of applying the interpretation of the statutory provision and even the Commissioner (Appeals) had granted them the benefit. The issue is of arguable nature and the appellate authority had also adopted the same view and hence it canoe be referred with any mala fide intention for evading duty. In the present CESTAT order, your Honour have decided on merits against applicant based P H High Court decision and Supreme Court decision as referred in Para 2 and Para 5 of the Order which are issued in 2008 and 2009 i.e. much after the availment of Cenvat credit in April, 2006. The issue being of the interpretation of the statutory provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vinayak Dyeing Printing Mills - 2011 (265) E.L.T. A69 (Guj.) C.C.E. v. Gowardhan Knitting Works - 2010 (260) E.L.T. 77 (P H) C.C.E., Rohtak v. J.R. Fabrics (P) Ltd. - 2009 (238) E.L.T. 209 (P H) K.P. Pouches (P) Ltd. v. Union of India - 2008 (228) E.L.T. 31 (Del.) 3. As can be seen in Para 5A assessee is submitting that even though on merit the credit may not be available to them, on the ground that the show cause notice was time barred, the demand for Cenvat credit should have been set aside. In this case it has to be noted that it was the Revenue which was in appeal against the order and the order had allowed the Cenvat credit only on merits. In fact the moment Revenue filed an appeal appellants should have filed cross-ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al challan as regards evidence of payment of duty. The credit is on the basis of photocopy of bill of entry and evidence produced is also photocopy of the challan. These observations show that the claim of the respondent/assessee that at the time of availment they had the original copy of bill of entry is not acceptable. The original adjudicating authority has already observed that the requirement of submission of documents with the returns has been discontinued and therefore the responsibility to take credit on the basis of proper document is on the assessee and to show that it has been taken so is also on the assessee. Therefore the suppression of fact has been correctly invoked and the observations even though have not directly discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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