2010 (11) TMI 280

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.... 2. As per facts on record appellant is engaged in the processing of grey fabrics, on job work basis for their various merchant manufacturer clients. One such merchant manufacturer M/s. Avinash Exports filed two rebate claims for total amount of Rs. 3,99,284/- based upon ARE-1s of the appellant as the processor/manufacturer of the processed fabrics. The goods were claimed to be exported from CFS Mulund, Mumbai. The said rebate claim was sanctioned to the merchant manufacturer/exporter on 16-6-03. 3. However subsequently investigations were initiated against the said M/s. Avinash Exports and on verification of genuineous of the shipping bills of the exporter, the same were found to be forged, thus indicating that no goods were a....

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....s were initiated against various persons, including the present appellant alleging that the modvat credit availed by the appellant is not admissible to them in as much as the grey fabrics were never received by them and no processing was done by them and the processed fabrics were not cleared, as per the statement of M/s. Avinash Exports. The show cause notice was adjudicated by the Assistant Commissioner, who confirmed the demand of duty of Rs. 2,66,201/- against the appellant by denying the deemed cenvat credit availed in respect of the grey fabrics sent by M/s. Avinash Exports. In addition penalty of identical amount was imposed in terms of the provisions of Erstwhile Rule 13 of Cenvat Credit Rules, 2002 read with Section 11AC of the Cen....

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....msp;In any case I find that the Revenue has sought to deny the deemed modvat credit availed by the appellant in respect of the grey fabrics received by them on the ground that no manufacturing process has taken place at the appellant's premises. If the said stand of the Revenue is accepted, it will lead to the fact that no duty payment on the final product was required. However it is seen that apart from using the said modvat credit for payment of duty, the appellants have also paid an amount of Rs. 66,533/- from the PLA account. According to the appellant no prudent man will pay duty to the government without actually receiving the grey fabrics. I agree that this fact tilts the weight of the evidence in favour of the appellant. In any case....