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2015 (5) TMI 288 - CESTAT NEW DELHIDenial of CENVAT Credit - Bogus transactions - Imposition of penalty - Held that:- Burden of proof on M/s Kisco Casting cannot be treated as discharged by them on the basis of the news paper's report reporting that a number of vehicles are running in the State of Punjab & Haryana under fake registration, and therefore, the Commissioner (Appeals) relying upon such newspaper reports is totally wrong - returns have been assessed finally by the range officer which contain all the details including the details of the invoices under dispute on the basis of which credit have been availed and utilized, is , not correct, as when the burden of proving that the material covered under the invoices issued by the respondent firm had actually been received by M/s Kisco Casting is on them, it is M/s Kisco Casting who has to lead the evidence of having actually received the goods covered under the invoices issued by the respondent firm, and they cannot do so by picking the holes in the Department's case or shifting the burden of proof to the Department. The burden of proof will shift to the Department only when M/s Kisco Casting have produced credible evidence in support of their claim of receipt of the goods covered under the invoices issued by the Respondent. - impugned order is not sustainable - Matter remanded back - Decided in favour of Respondent. As regards penalty on Rajesh Kumar Gupta & Sons - Held that:- penalty had been imposed on the respondent firm, there is no justification for imposition of separate penalty on its proprietor. In this regard, Hon'ble P&H High Court in the case of Vinod Kumar Gupta vs CCE reported in [2012 (5) TMI 173 - PUNJAB AND HARYANA HIGH COURT] has held that the proprietorship firm and its proprietor cannot be treated as two different legal entities and in that view, the second penalty on the proprietor in addition to the penalty on the proprietorship firm would amount to imposition of penalty twice over, which is not sustainable in the eyes of law. - Decided against Revenue.
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