TMI Blog2015 (10) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... Pawan Jain & Sons to avail inadmissible Cenvat Credit. Therefore, from the facts, it is clear that appellant has 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. - Decision in the case of Duggar Fiber Ltd. [2015 (9) TMI 246 - CESTAT NEW DELHI] followed - Decided in favour of assessee. - Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od January 2005-March 2007. The show cause notice was adjudicated. Penalty of ₹ 2 lakh and 1 Lakh, respectively on both the appellants under Rule 26 was imposed. Aggrieved from the said order appellants are before me. 3. The Ld. AR took the objection that the appeals cannot be decided at this juncture as the appeal filed by the main noticee i.e. M/s. Pawan Jain Sons is pending before this Tribunal. She further submits that the other co-noticee are also in this appeal before this Tribunal. Therefore, till such appeals be decided this appeal cannot be decided. She further submits that the impugned order has been passed on the basis of the evidences on record i.e. invoice, transport documents and statement of the appellants. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the appellant has sold goods to M/s. Pawan Jain Sons and they have admitted that they have received the goods. The penalty has been imposed on the appellants only on the basis of the statement of the transporter that they have not transported the goods to M/s. Pawan Jain Sons. But no cross examination has been granted. Therefore, third party statement not relied upon to impose penalty on the appellant. He further submits that penalty under Rule 26 is not imposable on the appellant during the relevant period as there was no provision to impose penalty on the appellant in the facts and circumstances of the case. 6. Heard the parties. Considered the submissions. 7. In the instant case the allegation as per the show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 26: Penalty for certain offences:- Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or (two thousand rupees), whichever is greater. Note: Quantum of penalty during different period Rate Date from Date upto Not exceeding the Duty or ₹ 10,000/-whichever is greater 01/03/2002 11/05/2007 Not e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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