TaxTMI 
TaxTMI 
2013 (12) TMI 286
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....requirement of pre-deposit is waived and appeal itself is taken up for final decision. 2. During the audit of the records of the assessee by the Revenue Audit Party, it was observed that during the period from March 2007 to May 2008, the appellants had availed CENVAT credit of Rs. 11,12,045/- on capital goods. It was observed that these capital goods are not installed in the factory but sent to their sister unit for job work and delivery challans under which these goods were sent were tampered with and that the actual date of dispatch of the capital goods was earlier than the dates indicated in the challan and at the time of audit the appellant had failed to produce documents to show that these goods had been received back within 180 day....
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....able by the appellant. 3. The learned counsel on behalf of the appellant submits that in this case there could not have been any penalty under Rule 15(2) read with Section 11AC of Central Excise Act 1944 since the quantum of duty demanded has not been determined under Section 11A(2) of Central Excise Act 1944 at all. In the absence of demand of duty (in this case CENVAT credit reversal and demanding the same), there could not have been a penalty under Rule 15(2) of CENVAT Credit Rules 2004. Further he also submits that allegation of tampering which has been upheld by both the lower authorities is totally not based on facts at all. He drew my attention to the table available in both the orders wherein dates of delivery challans have been ....
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.... of tampering of delivery challans. Further it is also seen that the Commissioner (Appeals) has relied upon para 24 of the original adjudicating authoritys order to show that the appellants had deliberately tampered with the challans and had deliberately miss-declared the details in their returns and had suppressed the fact of non-return of capital goods within the normal time. However in para 24 of the order-in-original no doubt there is a finding that the appellants have tampered delivery challans by inserting entries of the impugned capital goods when the departmental officers asked them to produce the evidence and receiving back of the goods, there is absolutely no evidence either in the table which is reproduced in para 19 or elsewher....
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....challan in my opinion has not at all been established by both the authorities. There is no clear finding that in the verification report the AC has mentioned that there was tampering. In any case paragraph 18 is reproduction of allegation in the show-cause notice and para 19 is the findings and when the table itself is compared with the documents and in the absence of an extra column to show the actual date of dispatch and actual date of delivery challan in the table, it cannot be said that the Revenue has made out a case of tampering against the appellant. When delivery challans have not been tampered and the credit has been reversed when the audit pointed out the same, in my opinion, it cannot be said that there was suppression of fact or....