TMI Blog2017 (3) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... CER, 2002 is not imposable - appeal allowed - decided in favor of appellant. - E/1830, 1981-1983, 2047 & 2198/2007 - FINAL ORDER NO. 61845-61850/2016 - Dated:- 30-12-2016 - Mr. Ashok Jindal, Member (Judicial) Present for the Appellant: Shri Naveen Bindal, Navin Mullick V.K. Gupta, Advocates Present for the Respondent: Shri Harvinder Singh, AR ORDER The appellants are in appeal against the impugned order imposing penalties under Rule26 of Central Excise Rules, 2002. 2. The facts of the case are that an investigation conducted at the end 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e against manufacturers/buyers who availed cenvat credit on the strength of invoices issued by Shri R.k.Gupta has been set aside by this Tribunal vide Final Order No.61136-61142/2016 dated 11.8.2016, therefore, penalty on the appellants is not imposable. He further submits that as the appellants are dealers and no investigation was conducted at the end of the supplier of the goods and further no proper investigation was conducted at the end of the transporter/driver or in case of statement of the transporter has been recorded but no 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 require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are further issued by Shri R.K.Gupta to the manufacturers/buyers have been settled in favour of the manufacturer/buyers holding that the in the absence of proper investigation, the cenvat credit cannot be denied to the appellant and the order of the Tribunal has been accepted by the Revenue. In that circumstance, when the statement of Shri R.K.Gupta has been discarded by this Tribunal, therefore, merely on the basis of statement of the transporter, the penalty on the appellants cannot be imposed 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the statement of Shri R.K. Gupta revealed that besides issuing bogus Modvat Invoices, he was also issuing genuine invoices and statement of Shri R.K. Gupta was very general and nowhere specifically mentioned that the invoices issued in the name of the appellant were bogus. The CESTAT had further held that M/s. Garima Enterprises Private Limited never received invoices for more than 6 tons and as such even as per the statement of Shri R.K. Gupta, supply to M/s. Garima Enterprises Private Limited was 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HR 38B 1101 and HRP 7671. No enquiry had been made from the owners/drivers of the aforementioned trucks and the enquiry made from the truck owners related to other buyers and not the appellant and the material supplied to the appellant was supplied in trucks and not tempo, whereas the statement of Shri R.K. Gupta relates to tempo and not truck, therefore the statement of the owners and drivers of the truck was not relevant to the appellant. Lastly, the CESTAT had not considered all the questions of penalty, 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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