TMI Blog2009 (8) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... d - decided against Revenue. - E/69/2008 - A/474/2009-WZB/C-IV/(SMB) - Dated:- 24-8-2009 - Shri Ashok Jindal, J. Shri T. Tiju, SDR, for the Appellant. Shri J.H. Motwani, Advocate, for the Respondent. ORDER This appeal is filed by the revenue against the impugned order wherein the appeal of the respondent was allowed by setting aside the order-in-original imposing the penalty on the respondent of Rs. 3,51,097/- under Rule 25 of Central Excise Rules, 2002 and a personal penalty of Rs. 3,51,097/- on the Proprietor Shri Prakash Chandrakant Jadhav, under Rule 13 of Cenvat Credit Rules, 2002. 2. The facts of the case are that the respondent is a 2nd stage dealer is engaged in the trading of iron and steel scrap. On the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the credit passed on by SSMIPL and SEPL, the first stage dealers were fraudulent ab inito, as only invoices were prepared without actually receiving/supplying the duty paid scrap material and purchase and receipt of iron and steel scrap from SSMIPL by the second stage dealer has not been substantiated by proper evidence. Thus, the second stage dealer, i.e. the respondent has contravened the provisions of Rule 11 of Central Excise Rules, 2002 read with Rule 7 of Cenvat Credit Rules, 2002 inasmuch as they have issued cenvatable invoices without receiving duty paid goods and, therefore, they were liable for penal action. Accordingly, the appellant ordered for revocation of Central Excise Registration issued to the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs used in alleged transportation of the goods. On the basis of the transport vehicles indicated in the duty paying documents issued in favour of the manufacturer, the case was correctly made out against the respondents that, they had issued only the duty paying documents without dispatch of physical stock to the factory of their customers. He further relied on New India Assurance Co. v. Kamla Others, 2001-AIR (SC) 0-1419 = 2001-SCC-4-342 wherein it was held that the insurer and insured are bound by the conditions enumerated in the policy. Insurer is not liable to the insured if there is violation of any policy condition. If the Insurance Company succeeds in establishing that there was breach of policy condition, then Claims Tribunal shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MH-04/C-5142 4 561 dt. 11-1-2002 MH-04/4589 5 117 dt. 1-5-2002 MH-12/AQ-9335 6 118 dt. 1-5-2002 MH-04/P-6120 7 119 dt. 1-5-2002 MH-12/R-9019 8 1657 dt. 13-1-2003 MH-04/C-5437 8. He further pleaded that the revenue had failed to consider their contention that they have received the iron and steel scrap from SSMIPL under the cover of cenvatable invoices, which were complete in all respect indicating in the appropriate column viz. the description of the goods, name of their manufacturers, date of its invoice, quantity and assessable value etc. and after satisfying the identity and address of SSMIPL, who issued them cenvata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered dealers. There is no evidence to prove that the invoices on the strength of which Modvat credit was taken did not cover the goods actually received. The claim of the appellant was that in their stockyard there was sufficient scrap, which showed that the scrap was from M/s. MUL . 9. Heard. 10. On perusal of the records and submissions made by the parties, I find that as per the show cause notice, the only disputed invoice is Invoice No. 1657 dated 13-1-2003, wherein it was alleged that the SSMIPL has purchased the goods from Beldev Ship Breakers (who is not existing since long). 11. On the other hand, the department did not bother to investigate the matter relating to the other seven invoices. Moreover, the department did not bot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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