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2017 (5) TMI 392 - CESTAT MUMBAIPenalty u/r 26 - whether the appellant Shri Milind Pires, Director of M/s.Surya Smelting Pvt. Ltd. is liable for penalty u/r 26 of CER, 2002 for the offence that the company M/s.Surya Smelting Pvt. Ltd. has availed fraudulent Cenvat credit on the invoices without receipt of inputs physically? - Held that: - Rule 26 can be invoked only in case where a person is dealing with the goods which is liable for confiscation. In the present case, the fraudulent credit was availed without physical receipt of inputs. This fact itself make it clear that no goods was involved which was liable for confiscation. Therefore, the ingredients of Rule 26 does not get satisfied - in the present case it is not the case of the clandestine removal of the goods but non-receipt of the inputs and fraudulent availment of the credit without physical receipt of the inputs - the penalty upon the appellant imposed under Rule 26 will not sustain - appeal allowed - decided in favor of appellant.
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