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2019 (2) TMI 306 - AT - Central ExciseCENVAT Credit - fictitious invoices - invoices without corresponding procurement of goods described therein - confiscation - applicability of rule 26 of Central Excise Rules, 2002 - Held that:- There is no record of any investigations having been pursued with the recipients on record to ascertain the receipt of the goods at the destination. Also, despite the retraction of the statement of the supervisor that indicted the appellant, the investigation failed to obtain facts that could have corroborated the statement and sustain it even after the person had expired. It is clear from the Rule 26 of CER that confiscability of goods is an essential prerequisite for imposition of penalty. In the instant dispute, there is no allegation that the impugned goods did not come into possession of the appellant. On the contrary, the entire cases been built around the goods not having passed into the possession of the buyers named in the 703 invoices and, therefore, the goods are not offending even if sold to buyers who are not on record - In the absence of any offence in relation to the goods that are alleged to have been not supplied to persons on record, rule 26 cannot be invoked. On this restriction in and non-applicability of, rule 26 of Central Excise Rules, 2002, the impugned order is liable to be set-aside. Appeal allowed - decided in favor of appellant.
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