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2015 (11) TMI 1039 - AT - Central ExciseCENVAT credit - Bogus invoices - No dealing with physical of goods - Fraudulent availement of credit - Imposition of interest and penalty - Held that:- All the five traders/bidders based in Viramgam have admitted that the freight charges were being paid by them or the buyer of the goods when such HR trimmings were being unloaded at Viramgam or nearby area. These statements leads to far more credibility than the bald claim of the main appellant. Further, we find that it is undisputed that consignments were transported through the trucks having Gujarat registration Number. For the transportation of the goods within the State of Maharashtra such trucks cannot undertake this activity. None of the appellants have contradicted this allegation or said anything about this allegation. We also find that the incriminating documents recovered from M/s. SKT i.e. the office of the transport commission agent Shri Chandrakant Nathwani (appellant No. 17) clearly indicates the vehicle number, date, weighment of the goods, the destination where the goods are unloaded and other details. Number of other officers were offered for cross-examination and were cross-examined. We do not find any consequence coming out from such cross-examination. We have also gone through the various case laws submitted by the appellant relating to cross-examination. We find, as mentioned earlier, the two persons who did not turn up for cross-examination are the co-noticees and in view of this Tribunal s decision in the case of Maya Mahal Industries reported in [1995 (3) TMI 260 - CEGAT, NEW DELHI] and also in view of Article 20(3) of the Constitution of India, the two cannot be forced for cross-examination. - purported consignee as per the invoice was different from the actual consignee who were Viramgam based traders. Thus, the manipulation in the name of consignee was done with the sole purpose of evading excise duty by mis-using the credit of duty paid on the HR trimmings. In view of the said position, in our view, the goods are confiscable under Rule 25(1)(d) and penalty is also imposable on the appellants. - Decided against the assessee. Levy of penalty for abetment - That a person would render himself liable for penalty for indulging in activities mentioned in Rule 26 of the Central Excise Rules, 2002, even if goods are not confiscated or had not been rendered liable for confiscation. We also note that as in that case, even in the present case all the appellants have full knowledge about every stage of removing, keeping, selling, concealing the excisable goods and the same would not have been possible without their active participation and connivance with each other. - from the documents recovered from their premises, it was very clear that they were fully aware that the HR trimmings were consigned to Viramgam based bidder and are being used by SSI units there. Under these circumstances, it was incorrect on their part to indicate the name and address of the main appellant in the present case and since they have changed the name of the consignee in spite of the fact that the goods were being transported to Viramgam or nearby area in different State. The goods are therefore liable for confiscation as discussed earlier and they are liable to penalty. - However, Penalty imposed on some appellants are reduced.
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