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TMI Blog2017 (1) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Revenue about the regularization of the adjacent plot in the name of the appellant - confirmation of the duty and penalty set aside. Cenvat Credit of ₹ 35,47,178/- availed on goods not received into the factory - Held that: - The appellant pleads that they should be called upon to deposit only the interest and 25% of penalty by giving them the benefit of Proviso to Section 11 AC of Central Excise Act, as no option was given to the assessee to pay 25% penalty - When the appellant can legally claim this benefit of payment of 25% penalty only as per provisions of Proviso to Section 11AC of Central Excise Act, the same is hereby allowed to them. Cenvat Credit of ₹ 66,442/- against the invoice no. 23 dated 23.04.2009 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 - A/55937-55939/2016-EX[DB] - Dated:- 20-12-2016 - Mr. Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Sh. A.R. Madav Rao advocate for the appellant Sh. M.P. Sharma, AR for the respondent ORDER Per Ashok K. Arya 1. M/s Mittal Pigments Pvt Ltd., Sh. R.K. Agarwal, Sh. R.P. Agarwal and Sh. K.M. Sharma are in appeal against the order in original dated 22/03/2013 passed by Commissioner of Central Excise, Jaipur. 2. The appellant company states that the subject matter concerns with the following main issues. i. Denial of Cenvat Credit of ₹ 61,14,698/- on alleged short found inputs. ii. Cenvat Credit of ₹ 35,47,178/- availed on goods not received into the factory(on 18 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 (116) ELT 684. 5.1.1. The appellant is not contesting the shortage found of Arsenic Metal weighing 2100 kg, valued at ₹ 1,37,100/- involving Central Excise duty of ₹ 20,195/-. as the appellant company has already reversed the Cenvat Credit in respect of said Arsenic Metal vide entry no. 942 dated 09.02.2011 in their RG 23A part-II. 5.1.2. After hearing rival submissions, it appears that it is not the case of the department that inputs were either removed or were not put to use in the manufacture of final products. The only charge is that the goods were kept in the plot adjacent to the factory premises. The said adjacent plot has been found to be regularized in the name of the appellant company. The appellant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods' :- The assessee company has not been able to disprove the allegation that they took the Cenvat Credit of ₹ 66,442/- without actual receipt of corresponding inputs. The appellant has not placed on record any proof of receipt of subject inputs in their factory premises. Therefore, recovery of Cenvat Credit of ₹ 66,442/- along with interest and equivalent penalty imposed are hereby confirmed equivalent penalty against the appellant company. 5.4. Cenvat Credit of ₹ 11,08,524/- taken on invoices where goods were returned back:- The allegation here is that the appellant company took the Cenvat Credit on nine self invoiceswhere there is no proof that the goods were actually returned to them. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers factory to the appellants factory premises. The appellant company argues that non-entry of the goods at the toll post of Churu is not substantial evidence to state that the goods were not received at the appellant companys factory. The appellant says that toll receipt at the Lakhanpur Border for the same consignment is however available. The appellant cites in support the case of Siddhartha Bronze Products Pvt. Ltd. V C.C.E. % S.T., Bhavnagar reported at 2015 (328) ELT 429 (Tri. Ahmed.) 5.5.1. By considering the rival submissions, it appears that mere non entry of the consignment at one of the toll posts cannot prove that the goods covered under the subject invoice were not received by the appellant company, unless there are ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Cenvat Credit amount into ₹ 35,47,178/- got settled through the machinery of Settlement Commission. When the subject matter has been settled by the Settlement Commission, the penalty of ₹ 20,000,00/- (Rs. Twenty lakh) is imposed on Shri R.P. Agarwal by the impugned order is hereby reduced to a token penalty of ₹ 1,000,00/-(Rs. One lakh) only. 8. The impugned order also imposed a penalty of ₹ 10,000 (Rs. Ten thousand only) on Sh. K.M. Sharma, the appellant, who is the authorized signatory of the appellant company. Considering the overall facts and circumstances of the case the said penalty imposed on Shri K.M. Sharma is hereby set aside. 9. The impugned order is modified to the above effect. In the result ..... X X X X Extracts X X X X X X X X Extracts X X X X
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