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TMI Blog2017 (3) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of M/s.R.K. Enterprises and on the basis of the statement of Shri R.k.Gupta dated 16.1.2001, a case has been booked against the manufacturers of copper wire, rods and circles on the ground that they had received only cenvatable invoices but not the goods. The case was based on the statement of Shri R.K.Gupta who stated that he was registered with the Central Excise department as dealer in 1996 and surrendered registration certificate in 1997 and again obtained registration in February, 1999 and during the period 1996-2001 having turnover in crores. He further stated that the appellants were issuing the cenvatable invoices and receiving the payment through the cheque also receiving the cenvatable invoices from the suppliers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross examination has been granted to the appellants. In that circumstance, as the case of manufactures/suppliers has been set aside by this Tribunal, therefore, in this case also, the impugned order is required to be set aside and the penalty is not imposable on the appellants. 4. 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. 5. Heard the parties and considered the submissions. 6. 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/buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Rule 26 of the Central Excise Rules, 2002. 7. Further, I find that the Hon'ble Punjab and Haryana High 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not bogus and that the CESTAT had wrongly interpreted the decision of the Division Bench in the case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty, as the adjudicating authority had imposed penalty equivalent to amount of duty although 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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