TMI Blog2018 (3) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... the CER, 2002 - Held that: - violation if any took place during the period March 2006 to Oct 2006 - provisions of Rule 26(2) can be invoked only after 1.3.2007 for imposing of penalties - penalties set aside. Appeal allowed - decided in favor of appellant. - E/10265/2013, E/10728/2013, E/10729/2013, E/11392/2013, E/11393/2013, E/12080/2013, E/12081/2013 - ORDER No. A/10382-10388/2018 - Dated:- 13-2-2018 - Shri M V Ravindran, Hon'ble Member ( Judicial ) For the Applicant : Shri D K Trivedi, Shri A Dave, Advocates For the Respondent : Mrs N Nagori, Authorised Representative ORDER Per : Shri M V Ravindran, All these appeals are filed against a common impugned order raising the same issue, they are being disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proprietor thereof as also on the main appellants appeal filed against such an order was also rejected. 3. Heard both sides and perused the records. 4. The Counsel for the main appellant submits that the entire case of the Revenue is mis-directed; that the Aluminum Extruded Profiles which were purchased by the appellant from Silverline Metals were in fact used for manufacturing purposes of Aluminum Alloy; appellant has installed a furnace wherein the extruded profiles could be melted and Aluminum Alloy can be manufactured; they had received the goods and recorded the same in the books of accounts like RG23, Part I and II and the credit was raised during March 2006 and October 2006 while the show cause notice was issued on 23.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the goods mentioned in the invoices issued by the Silverline Metals (Aluminum Extruded Profile) were not scarp or damaged nor it is mentioned that they are new Aluminum Extruded Profiles. On perusal of the invoices, I find that the said invoices do not indicate that they are scrap but at the same time, it is the contention of the main appellant before the lower authority and before the Tribunal that he had not received Aluminum Extruded Profile; but only received waste and scrap from M/s Silverline Metals. 9. In my view, damaged Aluminum Extruded Profiles can also be Aluminum waste and the scrap for the manufacturer of such profiles i.e., Shreeji Aluminium Pvt Ltd. The argument of the main appellant before the lower authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant that they had received damaged Aluminum Extruded Profiles, cannot be summarily dismissed. 10. In view of foregoing, it has to be held that the appellant had received Aluminum Extruded Profiles which is considered by than as Aluminum waste and scrap as consumption in the factory premises is not being disputed. In view of this, the confirmation of the demand of cenvat credit as ineligibly availed is incorrect and unsustainable. The impugned order is set aside and the appeal filed by the main appellant is allowed. 11. As regards the penalties imposed on other appellants, I find that the Adjudicating Authority has imposed the penalties under the provision of Rule 26(2) of the CER, 2002 for the violation of, if any, which took place ..... X X X X Extracts X X X X X X X X Extracts X X X X
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