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M/s Sahu Refrigeration Industries Ltd, Shri Rajiv Kumar Lohia, Director Versus Commissioner of Central Excise And Service Tax, Delhi-I

Fraudulent Duty drawback - Availment of inadmissible Cenvat Credit - penalty under Rue 26 of the Central Excise Rules - Held that:- penalty is imposable under Rule 26 during the relevant period if any person who acquires the possession or not or is in any way concerned transporting removing, depositing, keeping, concealing, selling or purchasing or in any manner deals with excisable goods, as in this case the allegation against the appellant is that the appellant has issued only invoices not sup .....

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levant 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 Nos. E/60007 & 60008/2013-EX(SM) - Final Order Nos. A/51494-51495/2015-EX(SM) - Dated:- 5-5-2015 - Ashok Jindal, Member (J),J. For the Appellant : Shri B S Yadav, Adv. For the Respondent : Ms Ranjana Jha, DR ORDER Pe .....

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f 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 invoice .....

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e 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 t .....

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efore, she prayed 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 & Son .....

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ound only. He further submits 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 i .....

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ve been shown to be sold to M/s. Pawan Jain & Sons have been adjusted through cash sale. On going through the cash book it was found that the appellant has shown sale of 90.096 MT of finished goods to benami Buyers whose name and address are not available with the appellant. On 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 fraudu .....

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ct of commission and omission on their part have supplied raw material of finished goods to the nature described under Rule 26 ibid." 8. Therefore, to impose penalty under Rue 26 of the Central Excise Rules I have to go through the provision of the Rule 26 during the relevant time. "Rule 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 m .....

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