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2022 (6) TMI 490 - AT - Central ExciseLevy of penalty u/r 26 of CER - Availment of fraudulent refund under Notification No. 56/2002-CE dated 14.11.2002 - refund availed on the basis of falsified documents and issuance of invoices showing removal of finished goods, namely copper ingots - it is also alleged that no production activity had taken place in the factory premises and only paper transactions were undertaken - HELD THAT:- On the similar set of facts and circumstances, the department in OMEGA ROLLING MILLS P. LTD. VERSUS C.C.G. ST. PALGHAR. [2018 (7) TMI 2261 - CESTAT MUMBAI] proceeded against the buyer of the alleged goods M/s. Omega Rolling Mills Pvt. Ltd. On appeal against order dated 28.11.2017 passed by the learned Commissioner (Appeals), Mumbai, this Tribunal has held that based on the investigation conducted by the DGCEI in the premises of M/s VKM, the proceedings were initiated against the appellant, alleging fraudulent availment of Cenvat credit. Since, the order confirming the demands against M/s VKM has already been set aside by the Tribunal vide order on 23.05.2018 on the ground that it had manufactured the impugned goods in its factory, I am of the view that the adjudged demands confirmed against the appellant cannot be sustained for judicial scrutiny. From the above observations made by the Tribunal, the issue is crystal clear that in the present case, the goods were in fact supplies by the appellant M/s. V.K. Metal Works to M/s. Omega Rolling Mills Pvt. Ltd. and the transporter M/s. Kanpur Kashmir Roadways was engaged for facilitating transportation of goods from the appellant’s factory to the buyers destination. Hence, the imposition of penalty under Rule 26 ibid on both the appellants cannot be sustained for judicial scrutiny. Appeal allowed - decided in favor of appellant.
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