TMI Blog2015 (1) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... .2005, there is no gap between the manufacturer's invoice and invoice issued by M/s. S. K. Garg & Sons to M/s. Pawan Steels. In all other five invoices, there is big gap of more than 20 days between the invoices issued by the manufacturer/importer to M/s. S. K. Garg & Sons and the date of invoice issued by M/s. S. K. Garg & Sons to M/s. Pawan Steels . This big gap between the date on which M/s. S.K. Garg & Sons are supposed to have received the materials from manufacturers/importers, and the date on which they have shown the sales of that material to M/s. Pawan Steels cast very serious doubt about the transactions of M/s. S.K. Garg & sons with M/s. Pawan Steels , as when M/s. S. K. Garg & sons had no godown as no office, they could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2014 - Rakesh Kumar, J. For the Appellant : Shri Sudhir Malhotra and Shri Ravi Chopra, Adv For the Respondent : Shri M S Negi , DR JUDGEMENT Per: Rakesh Kumar: M/s Pawan Steels is a second stage dealer and according to them, during the period Feb., 2005 to Jan. 2007, they supplied M.S. flats and bars to M/s. I.J. Tools Castings (P) Ltd . The goods supplied by M/s. Pawan Steels as second stage dealer to M/s. I.J. Tools Castings , in turn, had been received by them from M/s. S.K.Garg . Sons , as first stage dealer. On the basis of the invoices issued by M/s. Pawan Steels , M/s. I.J. Tools and Castings , a manufacturer of fences, had taken cenvat credit of ₹ 2 ,21,820 /-. In all the invoices issued by M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Malhotra representing M/s. I.J. Tools and Castings Pvt. Ltd. and Shri Ravi Chopra representing M/s. Pawan Steels pleaded that M.S. Flats/bars had been supplied by M/s. Pawan Steels , an second stage dealer to M/s. I.J. Tools and Castings Pvt. Ltd. under invoices, that these goods had been received by M/s. Pawan Steels from the first stage dealer M/s. S.K. Garg Sons , that it is not the allegation of the department that M/s. Pawan Steels did not have any godown, that the only basis of the department's allegation is that M/s. S.K. Garg Sons had not supplied any M.S. Flats and M.S. Bars to M/s. Pawan Steels and had only issued the invoices to M/s. Pawan Steels as M/s. S.K. Garg Sons did not have any godown and their registration cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed and since for manufacture of fences, M.S. Flats and bars have been used and there is no evidence produced by the department as to from which other sources, the raw materials would have been procured by M/s. I. J. Tools Castings if they had not received M.S. Flats and bars from M/s. Pawan Steels . The only conclusion which can be drawn is that the M. S. Flats and bars had been received from M/s Pawan Steels. It was, therefore, pleaded that the impugned order is sustainable. 4. Shri M.S. Negi , ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that the appellant's plea is that while M/s. Pawan Steels had procured the goods supplied by them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h M/s. S. K. Garg Sons had received the materials. It is seen that out of the six invoices issued by M/s. Pawan Steels , only in case of invoice no. 150 dated 15.09.2005, there is no gap between the manufacturer's invoice and invoice issued by M/s. S. K. Garg Sons to M/s. Pawan Steels. In all other five invoices, there is big gap of more than 20 days between the invoices issued by the manufacturer/importer to M/s. S. K. Garg Sons and the date of invoice issued by M/s. S. K. Garg Sons to M/s. Pawan Steels . This big gap between the date on which M/s. S.K. Garg Sons are supposed to have received the materials from manufacturers/importers, and the date on which they have shown the sales of that material to M/s. Pawan Steels cast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cenvat credit demand. 7. As regards penalty on M/s. Pawan Steels for issuing bogus invoices, it is pleaded that while the same has been imposed by the original adjudicating authority under Rule 15 (2), which is not applicable, the Commissioner (Appeals) has upheld the penalty under Rule 26, which was not applicable during the period of dispute. However, I find that the Commissioner (Appeals) has relied upon the judgement of the Hon'ble Punjab Haryana High Court in the case of Veekay Enterprises reported in 2011 (266) ELT 436 (P H) , wherein the Hon'ble High Court has held that even during the period prior to 1.3.2007, penalty under Rule 26 is imposable on a registered dealer, who has issued bogus invoices without delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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