Commissioner of CGST & Central Excise, Howrah Versus M\/s. SKF India Ltd.
Central Excise
2018 (7) TMI 150 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 28-3-2018
Appeal No. E\/75114\/2018, CO-75426\/2018 – FO\/76060\/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
\nShri S.S. Chattopadhyay, Suptd. (AR) for the Appellant (s)
\nShri Archit Agarwal, C.A. for the Respondent (s)
\nORDER
\nPer Shri P.K. Choudhary
\n1. The respondent herein is engaged in the business of manufacturing excisable goods classifiable under Chapter 84 of the First Schedule to the Central Excise Tariff Act 1985. The respondent has manufacturing units located at Pune, Hooghly and Bangalore. They had their depot in Taratala, Kolkata which was subsequently shifted to Dankuni, Hooghly. During the course of scrutiny of their records and documents for the year 2011-2012, it was observed that the respondent had received cenvatable invoices of their Bangalore\/Pune unit on stock transfer basis whi<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n compilation of case laws and copies of the statutory provisions and submits that the assessee is using ERP system and though the Taratala Depot was already shifted to Dankuni premises, the necessary amendments in the ERP system were not carried out till then and accordingly the invoices issued by the Bangalore\/Pune Units reflected that the goods were dispatched to Taratala Depot. Copies of the tax invoices have been filed. Ld. Counsel have also filed copies of the safe express logistic which shows the consignee's address at Dankuni, Hooghly. He further submits that there is no violation of Rule 11(2) as alleged in the show cause notice and the penalty imposed under Rule 26(2) is not tenable in the eye of law. He further submits that show cause notice mentioned only Rule 26 and no sub-clause had been mentioned, but the Adjudicating Authority has imposed penalty under Rule 26(2) and in view of the settled legal position, such penalty cannot be imposed. In support of his submission he rel<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n on no., rate of duty, quantity and value of goods and the duty payable thereon.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Commissioner of CGST & Central Excise, Howrah Versus M\/s. SKF India Ltd.Central Excise2018 (7) TMI 150 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 28-3-2018Appeal No. E\/75114\/2018, CO-75426\/2018 – FO\/76060\/2018Central ExciseShri P.K. Choudhary, Member (Judicial) Shri S.S. Chattopadhyay, Suptd. (AR) for the Appellant (s) Shri Archit Agarwal, C.A. for the Respondent (s) ORDER Per Shri … Continue reading “Commissioner of CGST & Central Excise, Howrah Versus M\/s. SKF India Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12478","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12478","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12478"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12478\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12478"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12478"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12478"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\nIt is clear that the invoice should bear the name of the consignee, which in the instant case has been recorded correctly and the same has not been disputed by the department.
\n7. Rule 26(2) of the Rules, reads as under:
\n “26(2) Any person, who issues-
\n (i) An excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or
\n (ii) Any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater.”
\nI find that penalty under Rule 26(2) of the Rules is imposable on a person if he (i) issues any invoice without delivery of goods, (ii<\/p>\n
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