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TMI Blog2015 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... . A show cause notice dtd 14.12.2004 was issued proposing to deny the cenvat credit of Rs. 44,10,384.00 wrongly taken alongwith interest and to impose penalty during the period from 3.1.2000 to 25.10.2003. It has also proposed demand of differential duty of Rs. 14,266/-alongwith interest and penalty on clearance of 4953.400 kgs of plastic scrap/waste as undervalued. It has proposed imposition of penalty on Shri Vivek C Vaidya, Managing Director of the appellant company and Shri Yogesh N Desai, Manager/Authorized Signatory of the appellant company under Rule 209 A of the erstwhile Central Excise Rule 1944 and presently Rule 26 of the Central Excise Rule 2002. It has been alleged that the appellant company have wrongly taken cenvat credit on the basis of bogus invoices issued by non-existence firms and made false entries. 2. The adjudicating authority confirmed demand of cenvat credit of Rs. 44,10,384/- alongwith interest under erstwhile Rules 57 I of the Central Excise Rule 1944, Rule 12 of Cenvat Credit Rule 2001 and 2002 and Rule 14 of the Cenvat Credit Rules, 2004 read with provisions of proviso to sub-section (1) of Section 11A of the Central Excise Act 1944. It has also confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) He also submits that the Misc. application filed by them on additional grounds in so far as the demand of duty under Rule 571 of the erstwhile Rules is liable to be set aside as the said Rule was not in existence at the time of issue of show cause notice. He also contested the demand of duty of Rs. 14,266.00 in merit and imposition of penalty. 5. On the other hand, the Learned Authorized Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that admittedly the appellant availed the credit on the basis of the invoices issued by the non-existence firms. It is submitted that the appellant did not dispute this fact and therefore the demand of duty and imposition of penalty are justified. Further, he submits that the Hon ble High Court of Punjab and Haryana in the case of M S Metals vs. Commissioner of Central Excise, Haryana 2014(309) ELT.241 (P&H) rejected the appeal of registered dealers. In that case, the appellant a registered dealer issued bogus invoice without selling any goods to a firm, on the basis of which the said firm took the cenvat credit. In the present case, the appellant availed credit on the basis of the invoices is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.9.2004 stated that they received the goods with the central excise invoices through the broker from the said input supplier. The central excise invoices were verified and defaced by the Superintendent of Central Excise at the initial stage. Thus, there is no scope to doubt the genuinty of invoices. It is evident that the duty paying documents were found genuine at the time of availing credit, as the Superintendent of Central Excise defaced the invoices, under the law, as it stood during the relevant period. Subsequently, in 2004, the Central Excise officers withdrew the said invoices for further verification and found that the input suppliers are non-existent. In this situation, it cannot be said that the appellant had not taken any reasonable steps under Rule 7(2) of the Central Excise Rules as the invoices were defaced by the Superintendent of Central Excise at the initial stage. There is no material available on record that the appellants had any knowledge of the issue of the invoices by the non-existence firms. It is evident from the record that the invoices contained all the information, such as, central excise duty, PLA entry number, central excise Range number etc. So, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant had no knowledge that the input suppliers were not registered with the Central Excise Authorities. The appellant during the investigation, categorically stated that they received the goods accompanied with Central Excise invoice and duty recorded in Cenvat Register. It is further evident from record that inputs were utilized in the finished goods, cleared on payment of duty. There is no material available that the appellant was party to the fraud and the decision of the Hon ble High Court is applicable in this case. 10. The case laws relied upon by the Learned Authorized Representative for the Revenue are not applicable in the present case. The case of M/s M S Steel (supra) as relied upon by the Learned Authorized Representative is in respect of imposition of penalty on the registered dealer. The decision of the Hon ble High Court of Gujarat in the case of Sheela Dyeing and Printing Mills Pvt Ltd (supra) as relied upon Learned Authorised Representative is not on the issue of limitation. On the other side, the decision of the Hon ble High Court of Gujarat in the case of Prayagraj Dyeing and Printing Mills Pvt Ltd (supra) followed in Poddar Exports (India) Proprietary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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