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2023 (5) TMI 376 - CESTAT MUMBAILevy of penalty on Proprietor of the Firm under Rule 26(2) of Central Excise Rules, 2002 - fraudulent availment of CENVAT Credit on the basis of Central excise invoices issued by the registered dealer namely M/s. Ganesh Metals, Propriety concern of the appellant, without actually receiving the goods - HELD THAT:- The appellant has in fact contravene the provisions of the Central Excise Rules, 2002, by providing the invoices without actually supplying the goods to the said two units. Hence, liable for final action under Rule 26(2) of Central Excise Rules, 2002. The total CENVAT credit that has been availed by the 2 units in contravention against the invoices of the appellant is amounting to [Rs.46,83,774/-(BED-Rs.39,76,774/- plus ED Cess – Rs. 78,622/- plus SHE – Rs. 39,689/- plus AED-Rs. 5,88,689/-] + [Rs. 6,76,868/- (BED-Rs. 4,78,010/- plus ED.Cess-Rs- Rs. 9,570/- plus SHE-Rs. 4,787/- plus AED-Rs. 1,84,501/-]=53,60,642/-. Taking note of the fact that penalty imposed on the appellant is above 50% of the credit taken by the set 2 units - the penalty imposed is excessively high. Hence for justice will be met if the set penalty is reduced to 10% of the penalty imposed on the appellant - Impugned order in respect of the appellant is thus modified holding the penalty of Rs. 2.5 Lakhs against the appellant. Appeal allowed in part.
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