2005 (7) TMI 117

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.... for delay of one day in filing of the present reference, the application is condoned. We are of the opinion that sufficient cause has been shown for granting the prayer made in this application of the applicant. 2. Consequently, we allow this application and condone one day delay in filing the reference application. C.M. stands disposed of accordingly. CEAC 13/2003 3. Commissioner of Central Excise has filed this reference application under Section 35H(1) of the Act praying that the Customs Excise and Gold Control Appellate Tribunal be directed to refer to this court the question of law referred to in the application and also grant stay of operation of the impugned order. 4. M/s. Prerna Metal Industries are engaged in manufacturing of ....

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....or which the duty was evaded and imposed a further penalty of Rs. 25 lacs on Mr. Sanjay Gupta under Rule 209A of the Central Excise Rules, 1944. Certain findings relatable to the industry as recorded in the order an usefully be referred at this stage. (1)  I disallow the Modvat credit amounting to Rs. 46,78,642/- wrongly availed on fake and bogus invoices to M/s. Prerna Metal and order to recover the amount of Rs. 43,99,947/- passed as illegal Central Excise duty on to various buyers/parties under Rule 57-I of the Central Excise Rules, 1944 read with Section 38 of the Central Excise Act, 1944; (2)  Interest due on the said amount to be charged from them under Rule 57-I(5) of Central Excise Rules, 1944 read with Section 38 of t....

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....evenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying  particulars the Modvat credit cannot be denied to the appellants. As far as the appellants are concerned they have purchased the goods which are dutiable on the strength of the invoices carrying duty payment particulars. Moreover the Revenue has confirmed the demand of duty against Prerna Metal Inds. in respect of goods removed by them by utilizing wrongly availed Modvat credit. We also observe that Rule 57-I of the Central Excise Rules, 1944 at the time when the show cause notice was issued, provided or the recovery of Credit taken on account of error, omission or misconstruction on the part of officer or manufacture....

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....suggest even active involvement of the industry. In the order of the Commissioner, specific reference has been made to another concern, namely Priyadarshini Paper Limited and the Appellate Tribunal, even in that case, had set aside the order in relation to recovery of Modvat credit. The said case was decided on somewhat similar facts and raising the same question. The order of the Appellate Tribunal dated 28-2-2003 passed in that case was not interfered with and no reference was allowed by this court in the case of CEAC 4/2005 where the Court held as under :- "The basic contention raised on behalf of the Appellant before us now is that the mere receipt of goods per se would not amount to admission of a fact that documents were produced an....