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2016 (2) TMI 587 - AT - Central ExcisePenalties imposed under the provisions of Rule 26(2) of the Central Excise Rules 2002 - appellants herein have issued invoices for the scrap purchased from manufacturing industries and passed on the Cenvat credit of duty but factually they have only delivered the market scrap to the recipients - Held that:- As find from a specimen Invoice No. 2857 of 29-9-2007 the, delivery challan issued by the main appellant is clearly indicates that goods “waste and scrap” are “non-excisable goods” and the description given is also loose scrap; while the tax invoice indicates the same as “waste & scrap” procured from Jyoti Structures Ltd. In my considered view, when the challan issued by the appellant indicates the goods as non-excisable goods, cannot become an excisable goods on which payment made. There is no explanation put forth by the appellant on this specific point. In the considered view the findings recorded by the first appellate authority as reproduced herein above clearly indicates that the appellant did not supply the inputs as mentioned in the duty paying documents. In view of the above find that both the appellants have not made out any case in their favour. The main appellant being a Pvt. Ltd. has been penalized under Rule 26(2) of Central Excise Rules, 2002 and the penalty needs to be upheld, while the 2nd appellant Shri Lalit Inderchand Baliya being a Director is also penalized under the same Rule. The penalty imposed on the 2nd appellant is unwarranted. In the facts and circumstances of the case, penalty imposed on the 2nd appellant is set aside while the penalty imposed on the main appellant is upheld as has been ordered by the first appellate authority. - Decided in favour of assessee
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