9911796707
TMI Blog2019 (11) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee whereas the issue in appeal filed by Revenue is that the appellant company have deliberately taken cenvat credit of the full quantity of input, being of petroleum coke which was imported in one ship load vide one Bill of Entry, but on the date of taking credit, only about 1/5 of the consignment had reached the factory and about 4/5 was still in the transit or lying at the port in the ownership of the appellant company. 3. During the checking of the record of the appellant company, audit found that for the month of June, 2015, appellant have availed cenvat credit of Rs. 3,42,68,557/- which was for quantity of 51272.81 MT of petroleum coke imported by them, being ship load for which Bill of Entry was filed on 15th June, 2015. Admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve technically violated the provisions by taking credit prematurely in full and also utilising the same. Accordingly, he upheld the demand of interest and also appropriated the same from the amount deposited prior to issue of Show Cause Notice. As regards penalty the learned Commissioner observed that ingredient for imposition of penalty under Section 11 AC 1(c) are not present. Further observed that appellant was required to take only admissible credit as per the Rules, on physical receipt of inputs in the factory, but instead of doing so the appellant took the whole credit on part receipt of the consignment (ship load) covered under the Bill of Entry in question. Such credit was fully admissible to them as on 10th September, 2015, when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the credit was allowed to the assessee. 8. The said order of this Tribunal was approved and upheld by Hon'ble Gujrat High Court in CCE vs. Indica Chemical Industries-[2008 (224) ELT 41]. 9. On the other hand learned AR pressing the appeal for Revenue states, under that the facts and circumstances there is mischief and deliberate taking of credit by the assessee. Thus, relying on the ruling of this Tribunal in Shamon Galva & Colortek Pvt. Ltd. vs. Commissioner -[2010 (257) ELT 577] wherein a case of taking cenvat credit on several consignments of inputs, and some of which were never received was the issue. This Tribunal held that the condition for imposing penalty under Section 11AC are fulfilled, as it is clear case of malaf ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
