TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 552
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....investigation conducted, and scrutiny of records and year-wise returns filed by the appellant during the period May 2004 to February 2005, it was noticed that the appellant has availed ineligible Cenvat Credit as processors who were issued the invoices to the appellant had infact availed Cenvat Credit on the invoices of the inputs; and such supplies / fabrics were fake or non-existent. Show cause notice dt. 27.05.2009 was issued to the appellant for denial of such credit. After following the due process of law, the adjudicating authority confirmed the demands raised, demanded interest thereof and also imposed equivalent penalty. 3. Ld. Counsel appearing on behalf of the appellant would submit that the issue can be divided into two: (i) As ....
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....nting Mills Pvt. Ltd. was sent to Superintendent of Central Excise, Range V, Division V of Surat-I Commissionarate which itself would indicate that wrong details was sought for and received. He would also draw our attention to the documents downloaded by them from the CBEC site indicating that M/s. Rainbow Dyeing & Printing Mills Pvt. Ltd. is still functioning in Range IV, Division III of Surat Commissionarate. It is his submission that since the unit is still functioning, there cannot be any findings that the supplier of the goods / processor is non-existing. 3.1. As regards to the Cenvat Credit availed on the invoices issued by the other processors, he would submit that the decision of the Hon'ble High Court of Gujarat in the case of Pra....
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....that the proprietor of the appellants firm did not honour the summons send by the revenue which had resulted in non-recording of factual position as to whether he was aware of the non-existence of the fabric manufacturers. In support of this claim, he would rely upon the decision of the Honble high Court of Gujarat in Special Civil Application No.9291 of 2011 in the case of Riva Exports and others which is unreported. He would submit that their Lordships have specifically stated that if an assessee is aware of the fact that the duty paying documents, are issued by fake / non-existing suppliers, the Cenvat Credit is rightly to be denied. 5. Ld. Counsel in rejoinder would draw our attention to the fact that in the case of Riva Exports and ....
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....Dyeing & Printing Mills Pvt. Ltd. is in existence and it is still functioning in the address as indicated in the CBEC site. We propose to remand the matter back as regard the Cenvat Credit availed on the invoices of M/s. Rainbow Dyeing & Printing Mills Pvt. Ltd. Hence, we are not recording any observations or findings on the merits. The issue regarding the availment of Cenvat Credit on the invoices issued by M/s. Rainbow Dyeing & Printing Mills Pvt. Ltd. is remanded back to the adjudicating authority to reconsider the issue afresh after calling for the report from the correct range as to the authenticity of the documents on which Cenvat Credit was availed. 9. As regards the Cenvat Credit availed on others six processors, we find that the i....
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....f Prayagraj Dyeing & Printing Mills Pvt. Ltd. Vs. Union of India (Supra) has held so. We reproduce the relevant paragraph (nos.12 and 13) from the judgment: 12. The next question is whether demand of reversal is barred by the period of limitation. In our opinion, in view of our above finding that if the original document is issued even by practising fraud, a holder in due course for valuable consideration unless shown to be a party to a fraud, cannot be proceeded with by taking aid of a larger period of limitation as indicated in Section 11A(1) of the Act. It is now settled law that Section 11A(1) is applicable when there is positive evasion of duty and mere failure to pay duty does not render larger period applicable. In the case before u....
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....ul misdeclaration on the part of the respondent-assessee, there was no scope of invoking Section 11A of the Act. 10. We are of the view that the above said ratio squarely covers the issue in favour of the assessee atleast as regards credit availed on documents of the six processors on whose invoices, revenue is trying to deny the Cenvat Credit. 11. We find that the reliance placed by the Ld. Departmental Representative in the case of Riva Exports and others (Supra), also does not carry their case any further in as much as, as correctly pointed out by the Ld. Counsel that the issue in the case of Riva Exports and others (Supra) was regarding the rejection of the rebate claims filed by the said M/s. Riva Exports. We also note that their Lor....