2018 (6) TMI 784 – CESTAT NEW DELHI – TMI – Penalty u/r 26 of CER – allegation against the appellants are that they have facilitated the fraudulent availment of Cenvat credit to the main noticee viz. M/s Ujala Electricals Ltd. – period involved in this case is from 2005-2006 to 2008-2009 – Held that:- The penal provision under sub-rule 2 of Rule 26 was not there in existence for the period 2005-2006 and 2006-2007 and only available for the period after 1.3.2007 – the penalty cannot be imposed for the period prior to 1.3.2007, the date on which sub-rule (2) was inserted in Rule 26 of Central Excise Rules, 2002 vide Notification No. 8/2007-CE(NT) dated 1.3.2007 for issuing invoices without delivery of goods and also for abetting in issuing such invoices.
–
These aspects need to be relooked into by the ld. Adjudicating authority – appeal allowed by way of remand. – Appeal No. E/52137/2016-SM, E/52153/2016, E/52143/2016, E/52842/2016 – A/52094-52097/2018-SM[BR] – Dated:- 1-6-2018 – Sh
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ter dated 12.12.2014 submitting the copies of ledger in the defence reply has not been considered and discussed by the ld. Adjudicating Authority while passing the impugned order. The ledger, as stated by the ld. Advocate, is a crucial document for the verification of the transactions in question. Further, the order is based on the third party statement without any corroborative evidence. That there is no dispute that the goods were cleared by the appellant but the allegation that those are diverted en-route to have been not investigated and discussed by the ld. Adjudicating authority. Also that the transactions with M/s Ujala Electricals Ltd. by the banking channel and there is no evidence of any financial flow back to the appellant. Ld. Advocate further relied upon the decision of M/s Z.U. Alvi Vs. CCE, Bhopal – 2000 (117) ELT 69 (Tribunal ) and Manohar Singh Rana Vs. CCE, Indore – 2017 (357) ELT 1163 (Tri.-Delhi) The last but not least, the ld. Advocate has stated that the penalty h
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ply of the goods and, therefore, facilitated the availment of the wrong Cenvat credit which is contrary to the provision of Cenvat Credit Rules, 2002. 4. Heard both the parties and considered the case record. 5. The only issue involved in the present case is regarding imposition of penalty of ₹ 25 lakhs each under the provisions of Rule 26 of Central Excise Rules, 2002 as a co-noticee, for the fraudulent availment of Cenvat credit by M/s Ujala Electricals Ltd. The period involved in this case is from 2005-2006 to 2008-2009. The penal provision under sub-rule 2 of Rule 26 was not there in existence for the period 2005-2006 and 2006-2007 and only available for the period after 1.3.2007. Also, the ledger submitted by the noticees appears to have been not considered by the ld. Adjudicating authority which, as per the ld. Advocate, is a crucial piece of evidence to prove the innocence of the appellant. It also settled by the judicial decision of Hon ble Haryana High Court and this Tri
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =