9911796707
TMI Blog2015 (10) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... ase are that DGCEI booked a case against one M/s. Pawan Jain & Sons who is an exporter of stainless steel utensils. The allegation against him is that he has obtained goods fraudulently to claim duty drawback against the exports made by him. On the basis of the investigation conducted at the end of M/s. Pawan Jain & Sons and after recording the statements, the appellants were also made the parties to the show cause notice alleging that the appellant were issuing only invoices to avail inadmissible Cenvat Credit to M/s. Pawan Jain & Sons without supplying the goods. The statements of various transporters and staff of the appellant were recorded. On the basis of the statements recorded it was concluded that the appellant have issued invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed that penalty on the appellants is imposable. 4. I have heard the Ld. AR and considered the submission that these appeals cannot be decided at this juncture. I find that allegation against the main noticee M/s. Pawan Jain & Sons and its partners/directors is that they have availed the duty drawback fraudulently for export of goods and the allegation against the appellant is that they have issued invoices but have not supplied the goods to facilitate M/s. Pawan Jain & Sons to avail inadmissible Cenvat Credit. Therefore, issues are entirely different. Therefore, appeal against the appellant can be decided by me at this stage. 5. On behalf of the appellant the Ld. Counsel submits that the appellant sought cross examination of the transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being asked to produce details of these buyers they could not produce the same and thus these cash sales appears to be to fictitious and appears to have been shown only for adjustment of accounts in relation to fraudulent invoices which were supplied without accompanying goods enabling M/s. Pawan Jain & Sons to obtain inadmissible rebate claim. On the basis of these observation the allegation against the appellant is that the appellants are responsible for facilitating M/s. Pawan Jain & Sons to avail fraudulent rebate of Central Excise duty as they issued documents on the basis of which M/s. Pawan Jain & Sons has fraudulently taken inadmissible rebate under Central Excise Rules. Therefore, this act of commission and omission on their part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not dealt with excisable goods for availment of inadmissible Cenvat Credit by M/s. Pawan Jain & Sons and merely issued invoices. The provision for the person issuing invoices without supply of goods have come into force for imposition of penalty under Rule 26 has come into force w.e.f. 01.03.2007 and the said provision was not instituted during the relevant period. Therefore, I hold that appellants have not dealt with excisable goods. Therefore, penalty under Rule 26 is not imposable on appellants. Same view has been taken by this Tribunal in the case of Duggar Fiber Ltd. Vide Appeal No. E/59893/2013. 10. Therefore, I hold that penalties on both the appellants are not imposable. Consequently impugned order is set aside. Appeals are allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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