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TMI Blog2020 (2) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. had gone for re-adjudication is un-related to this instant appeal as genuiness of the invoices received and availement of Cenvat Credit by M/s. Accelerate Synthetics Pvt. Ltd. would be determined in that re-adjudication process. Going by the text of N/N. 34/2003-C.E, under para 1 (2)(a) it has been clearly mentioned that first or second stage dealer may, at his option, remove such goods after undertaking activities such as packing, repacking etc. on payment of amount equivalent to duty of excise, which is levyable on such goods, it can avail Cenvat Credit on the same. Therefore, the appellant may also exercise his option not to remove such goods but payment of equivalent duty on such goods was a pre-condition which is under dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s supplier M/s. Accelerate Synthetics Pvt. Ltd., Bhiwandi, Thane had fraudulently availed Cenvat Credit on the strength of fake invoices issued by non-existing suppliers. Accordingly investigation was conducted in the appellant s unit. Statement of its proprietor Dasrath Sigh Rajpurohit was recorded on 12-1-2009 to 19-3-2009 who confirmed non delivery of goods directly by supplier M/s. Accelarate Synthetics Pvt. Ltd. for which duty demand of ₹ 25,544/- along with interest and equivalent penalty under various provisions of Central Excise Act read with rule 13 (2) 15 (2) of Cenvat Credit rule were made through show cause-cum-demand notice that was adjudicated upon by the Asst. Commissioner, Central Excise, Mumbai against the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri. Del.) of Commissioner of C. Ex. Delhi-I v. B.B. Steels, he submitted that retraction and its ground were communicated to the departmental authority within 15 days of such recording of statement for which no reliance can be place on those evidence and accordingly order passed by the Commissioner (appeals) is required to be set aside. 4. In response to such submissions, Learned Authorised Representative for the respondent Department argued in support of the reasoning and rationality of the order passed by the Commissioner (appeals) and placed his reliance on the confessional statement of the proprietor-ship firm wherein he admitted that there was no actual movement of goods and one broker Mohan Bhai used to collect invoices from M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat Credit by M/s. Accelerate Synthetics Pvt. Ltd. would be determined in that re-adjudication process. Here the appellant is before this Tribunal for determination of its eligibility to avail Cenvat Credit on the basis of the invoices raised by its supplier and not by the original supplier to its supplier and secondly, if such availment is permissible in the event of non-removal of goods. 7. Going by the text of notification no. 34/2003-C.E, under para 1 (2)(a) it has been clearly mentioned that first or second stage dealer may, at his option, remove such goods after undertaking activities such as packing, repacking etc. on payment of amount equivalent to duty of excise, which is levyable on such goods, it can avail Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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