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2015 (7) TMI 929

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..... oducts were being manufactured, credit availment was to be restricted to 20% of ₹ 372126.69/-. - Decided against the assessee. Appellant has also raised the issue of refund of excess amount. There is no such issue discussed in Commissioner (Appeals)'s Order. In present grounds of appeal also, no specific calculation is pointed out fortifying their claim for refund. This issue has also not been vehemently taken up in earlier stage. There are no indications on record whether these calculations were provided and specifically elaborated. In absence of these factors being reflected, I am unable to appreciate the quantifications in this regards. Further no evidence is coming on record whether refund claim was specifically pleaded with Co .....

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..... n being asked whether they had used CBFS as fuel in their furnace, he stated that he did not know whether there was any difference in CBFS or Furnace oil; that the furnace oil being used by the appellants, was supplied by the dealers on the invoices raised for CBFS as the dealers informed them that CBFS was the other name of furnace oil; that their firm had not received the CBFS against the invoices of dealers listed below and instead received furnace oil, which was contrary to the provisions of Cenvat Credit Rules, 2004. Therefore, they were ready to pay back the Cenvat Credit availed and utilized by them on CBFS. 5. In the course of investigation, another case of suppression and wrong availment of Cenvat credit amounting to ₹ 2,3 .....

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..... 77; 2,98,440/- towards other inputs. They also claimed that they have deposited excess amount of ₹ 66,641.16/-. However Commissioner (Appeals) did not consider their submissions. It has further been contended that the ST-3 return availing and utilizing the credit to full extent for the payment of Service Tax for the period 01.01.05 to 31.03.05 was filed as 25.04.05 and the ST-3 return for April, 05 to Sept, 05 was filed on 02.10.05. Similarly return for Oct., 05 to March, 06 was also filed. The facts were thus known to the Deptt. Allegation of Suppression was, accordingly, not sustainable. 8. They also contended that excess utilized credit was paid back in cash and that even before the issue of shown cause notice. So no extended pe .....

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..... ery high percentage of Carbon Black and if the same is used as fuel in the furnaces, generated smoke will have very high carbon contents and it will not be possible for the workers to work in the factory. I further find that it is an admitted fact on record that the invoices of M/s Naveen Oil Gas Company, Faridabad on the basis of which Cenvat credit was availed by the appellants, showed the description of the goods as CBFS and not as Furnace oil/fuel . Moreover, the appellants have not produced any documentary evidence on record that they had received and used CBFS as fuel in their factory especially when Shri S.K. Bhardwaj, Manager of the appellants in the voluntary statement dated 06.03.2006 had claimed that they had used only furn .....

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..... working under the jurisdiction of Central Excise Commissionerate, Delhi-IV, Faridabad, had also obtained Cenvatable invoices of CBFS under the guise of furnace oil and M/s Jaindendra Industries (P) Ltd, Faridabad was also one of them. The Hon'ble CESTAT, New Delhi has already decided the case of M/s Jainderdra Industries (P) Ltd, Faridabad vide its judgement reported as 2012 (278) ELT 613 (Tri-Del) disallowing the Cenvat credit on CBFS on the basis of export opinions. The relevant portion of the above judgement is reproduced below:- Cenvat/Modvat - Wrongful availment of credit - CBFS not received in factory and paper credit enjoyed on fake documents - Government Technical Report showing goods claimed to be used, not usable as furnac .....

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..... 2004. Therefore, there was definitely fraud and suppression of facts on the part of the appellants and hence the impugned demands so confirmed under the extended period of limitation, are legally sustainable. 11. In view of above and keeping in mind totality of facts, it is evident that Commissioner (Appeals) has examined the issue in detail and concluded the issue in favour of revenue. I have also examined the matter and fully concur with the conclusions drawn by the Commissioner (Appeals). I do not find any force in the contention of appellant as fraud has clearly manifested and has also been admitted. Extended period has rightly been involved. Penalty is also imposable as intent to defraud the revenue is very clear. Since both dutia .....

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