TMI Blog2018 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, Shri Dinesh Goel had no knowledge about fraudulent invoices without supply of the goods mentioned therein - Besides, the clear-cut admission by M/s.HSAL leaves no doubt that M/s.NSPF had engaged in commission of fraudulent availment of Cenvat credit. Penalty u/s 26(2) of CER on Director - Held that:- The issue of imposition of penalty under Rule 26 (2) prior to 1.3.2007 was examined by Hon’ble Punjab and High Court in the case of V.K.Enterprises [2011 (3) TMI 133 - PUNJAB AND HARYANA HIGH COURT] and ratio of the said judgment is applicable to the present case - In the said case, while upholding penalty on dealer for issuing invoices while not delivering the goods for the period prior to 1.3.2007, the Hon’ble High Court held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alling under Chapters 72 73 of the Central Excise Tariff, 1985. Investigations further revealed that the said manufacturer (M/s.NSPF) had received 20 cenvatable invoices without the receipt of 300.055MT of goods, on which credit of ₹ 11,00,798+ Cess ₹ 10,705/- was availed. The owner of the transport vehicles, whose registration numbers were appended in the said 20 invoices and Sh. Ramesh Rawat, Executive Director of M/s.HSAL denied having supplied and transported any goods to the manufacturer. Since M/s.NSPF had availed cenvat credit of ₹ 11,11,503/- during the period from 28.11.03 to 27.11.04 without receipt of corresponding goods, a show cause notice was issued to M/s.NSPF and its Director Shri Dinesh Goel. The Addl. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Ahmd.) 4. Ld.AR for the Revenue reiterated the findings in the order of the Commissioner (Appeals) and invited attention to the para 41.7 of the adjudication order and 22 of the show cause notice and argued that the Director of M/s. NSP Forging Pvt.Ltd. had admitted his involvement. He relied on the following judgements: (i) Rajender Sharma vs. CCE, Delhi-2005 (188) ELT 307 (Tri.-Del.) 5. Heard both sides and perused the record. 6. I find that it is not dispute that M/s.HSAL had issued cenvatable invoices to M/s.NSPF without the corresponding goods. It is fairly admitted by the Ld.Advocate for the appellant that the main assessee M/s.NSPF has paid duty and penalty when the supplier admitted that they had supplied the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of V.K.Enterprises-2011 (266) ELT 436 (P H) and ratio of the said judgment is applicable to the present case. In the said case, while upholding penalty on dealer for issuing invoices while not delivering the goods for the period prior to 1.3.2007, the Hon ble High Court held as under:- 10.Inspite of non-applicability of Rule 26(2), penalty could be levied as the appellant was concerned in selling or dealing with the goods which were liable to confiscation inasmuch as the appellant claimed to have sold the goods in respect of which the cenvat credit was taken. In such a case, Rule 25(1)(d) and 26(1) are also applicable. The person who purports to sell goods cannot say that he was not a person concerned with the selling of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and penalty and 25% penalty had been paid by the assessee before show cause notice. In the present case, it is not coming out whether the duty, interest and 25% penalty were paid before show cause notice. The ratio of the said case is therefore not applicable to the facts of this case. In the case of Subhasri Pigments Pvt.Ltd.(supra), this Tribunal has held that penalty could not be imposed on the Director. Rule 26 is applicable only when a person deals with the goods which he knows that are liable to confiscation. In the present case, the Director was incharge of overall affairs of the company and he was aware of the fact that invoices have been received without corresponding goods, which were liable to confiscation. In these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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