TMI Blog2017 (3) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants cannot be imposed u/r 173Q of the CER, 1944. The penalty u/r 173Q cannot be invoked unless and until the appellant have dealt with such goods during the impugned period. Admittedly, it is allegation against the appellants that they have dealt with issuance of bogus invoices - the penalty u/r 173Q of the CER, 1944 is not imposable. Penalty set aside - appeal allowed - decided in favor of appellant. - E/1049-1050 & 1203/2008 - A/60274-60276/2017-SM[BR] - Dated:- 10-2-2017 - Mr. Ashok Jindal, Member (Judicial) For the Appellant : None For the Respondent : Shri Vinod Guptal, AR ORDER PER ASHOK JINDAL The appellants are in appeal against the impugned order imposing penalties under Rule 173Q of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uyers to avail cenvat credit on the strength of bogus invoices. The matters were adjudicated, the penalties on all the appellants have been imposed. Aggrieved from the said order, the appellants are before me. 3. Learned AR submits that as the appellants are involved in the activity issuing invoices to M/s.R.K.Enterprises, the penalty is also imposable on the appellants. 4. Heard the parties and considered the submissions. 5. In this case, a case has been booked against the appellants on the basis of the statement made by Shri R.k.Gupta of M/s.R.K.Enterprises who stated he was involved in the activity issuing bogus invoices to the manufacturers/buyers to enable them to avail cenvat credit on the strength of invoices issued by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the case of P.P.Oxide vs. CCE, Faridabad-2015 (329) ELT 16 (P H) wherein the Hon ble High Court has observed as under; 7. The Revenue preferred an appeal in the year 2007 before the learned CESTAT, assailing the Order-in-Appeal passed by the Commissioner (Appeals), whereupon the CESTAT vide its Final Order Annexure A-5, dated 8-9-2009 allowed the appeal of the Revenue by holding that in the present case, admittedly all the consignments were of more than 6 MT, therefore, the adjudicating authority had rightly held that the assessee availed credit merely on the basis of invoices. The CESTAT further held that the Division Bench in the case of M/s. Garima Enterprises Private Limited [2005 (182) E.L.T. 106 (Tri.-Del.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of M/s. Garima Enterprises Private Limited . In the case of M/s. Garima Enterprises Private Limited it was nowhere held that consignments of more than 6 MT were bogus and that the CESTAT in the case of the appellant had wrongly noted that the Division Bench of the CESTAT had wrongly noted that Division Bench of CESTAT had held that consignments of more than 6 MT were bogus and opportunity of cross examination would not be necessary. Since all the statements were recorded behind the back of the appellant, therefore, no statement could be relied upon in the absence of granting opportunity of cross-examination. Further plea is that neither Shri R.K. Gupta had not been confronted with invoices issued to the appellant nor he was specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty was imposed under Rule 173Q read with Section 11AC of the Act. It was contended that in the light of the above, it was evident that the appellant had not committed any fraud, therefore, penalty was not warranted in the facts of the instant case. 9. The following substantial questions of law have been framed in the appeal by the appellant : - (a) Whether demand can be created on the basis of statement of third party who has not been allowed for cross-examination (b) Whether the findings of Tribunal are perverse and contrary to the facts and evidences on record (c) Whether Tribunal is justified to confirm demand when demand against similar situated buyers has been dropped (d) Whether equal amount of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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