2010 (5) TMI 225

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....cise Rules, 1944 read with Section 11A of Central Excise Act, 1944. Equal penalty was also imposed under Section 11AC of the said Act. So also there was penalty imposed under Rule 173Q of the above Rules. The reason for levy of excise duty and penalty was that the assessee availed above amount of cenvat credit in respect of 103.010 MT of concast slab against the invoices issued by M/s. Bhilai Steel Plant, Bhilai vide their RG-23A, part-II entry No. 453 to 456 dated 9-12-1999. On the basis of invoice so received, the respondent-assessee issued invoice/delivery challan No. 359 to 362 all dated 9-12-1999 under Rule 57-I(2) of Central Excise Rules, 1944 to M/s. Sidharth Industries, Bhilai for transfer of these goods. But investigation revealed ....

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....ty paying invoice. He held that there was no intention to evade duty liability. He proceeded on the premises that arrangement was made by the respondent to send the goods to the ultimate buyer to reduce the transportation cost for which the demand was unsustainable being time-barred. 4. Learned DR appearing on behalf of Revenue supported the order of Adjudication on the ground that when goods were not received at the factory of the respondent no clearance thereafter was made for which inadmissibility of Cenvat Credit of the aforesaid amount was justified. Accordingly, the Order-in-Original may be restored. 5. Ld. Counsel appearing on behalf of the respondent submits that the order passed by the ld. Appellate Authority was categoricall....

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....o the place of the business of the dealer M/s. Shri Sidharth Industries. 8. While ld. Commissioner (Appeals) as well as the Adjudicating Authorities agreed that, invoice (challan) in question has occasioned clearance of goods of M/s. Bhilai Steel Plant, there is no evidence coming out to show whether impugned goods were transported by the respondent through the vehicles as aforesaid. Ld. Adjudicating authority has a clear finding that the vehicles in question were not used for transportation of that goods by the respondents for carrying the goods to its factory. Once there is no evidence for reaching of the goods at the destination i.e. factory of the appellant the case proves to be a case of diversification. Once there is a diversificat....