- (1.) The appellant challenges order dated 25-3-2013, passed by the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as the 'CESTAT'), New Delhi, affirming order dated 27-1-2006, disallowing Cenvat credit of Rs. 1,97,263/- and an equal amount of penalty and order dated 31-8-2010, passed in first appeal filed by the appellant. A statement made by one Shri R.K. Gupta, Proprietor of M/s. R.K. Enterprises, that he had passed on Modvat/Cenvat credit without supplying goods and by only issuing invoices led to the search of his premises, recording of statements of Sarla Devi, mother of R.K. Gupta, Raj Kumar Verma, authorised signatory of the appellant, Arun Kumar, partner of M/s. Jain Tar Udyog as also recovery of forged documents and seals etc. As the respondent formed a prima facie opinion that the appellant had contravened Rule 57AB, 57AC and 57AE of the Central Excise Rules, 1944, (hereinafter referred to as the 'Rules'), the appellant was called upon vide notice dated 16-11-2004 to show cause why:- "(a) The Cenvat credit amounting to Rs. 1,97,263/- wrongly taken and utilised should not be disallowed and be recovered from them under Rule 57AH of the erstwhile Central Excise Rules, 1944 read with Section 11 of the Central Excise Act, 1944 by invoking the extended period of limitation as provided in proviso given under sub-section (1) of the said Section 11A; (b) the interest as applicable should not be recovered under Rule 57AH of the Central Excise Rules, 1944 read with Section 11AB of the Central Excise Act, 1944; and (c) the penalty should not be imposed under Rule 57AH with Rule 173Q of erstwhile Central Excise Rules, 1944 and Section 11AC further read with Section 38A of the Central Excise Act, 1944."
(2.) The appellant appeared before the adjudicating authority and sought cross-examination of the driver of the vehicle and Shri R.K. Gupta and produced photocopies of RG-23A allegedly to show that they had received and consumed the goods. On 17-1-2006 Premo Devi, owner of vehicle No. DL-1LD-5629 was cross-examined by counsel for the appellant. Shri R.K. Gupta could not be examined as he did not put in appearance.
(3.) The adjudicating authority thereafter disallowed Cenvat credit and imposed penalty of an equal amount. The appellant filed an appeal which was dismissed on 18-4-2007. The CESTAT, however, vide order dated 8-9-2009, set aside the order and remitted the matter to the Assistant Commissioner for adjudication afresh by granting an opportunity to the appellant to prove that they had received and consumed goods sold to them by Shri R.K. Gupta.;