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TMI Blog2018 (11) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... is also been filed for inclusion of additional ground in two appeals. The case relates to clandestine clearances on the strength of parallel invoices. 2. Ld. Counsel for the appellant argued that they are nor contesting the liability except in respect of clearance made to Mangalam Drugs & Organics Ltd. It was argued that in the said case the contract was separate for labor charges and for supply of raw material. It is however seen that the grounds of appeal do not contain any separate contention in respect of Mangalam Drugs & Organics Ltd. Even Misc. application does not contain any specific grounds for Mangalam Drugs & Organics Ltd. except that M/s Mangalam Drugs & Organics Ltd. are registered with Central Excise and were paying Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the scheme opted for by the assessee is found to have been misused (in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence; (c) With particular reference to Modvat scheme (which has occasioned this reference) it has to be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee's manufactured goods; (d) We express our opinion in favour of the view taken in the case of M/s. International Auto Products (P) Ltd. (supra) and endorse the proposition that once an assessee has chosen to pay duty, he has to take all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work basis and it was M/s N.H. Harsora who did not pay the duty in those circumstances it cannot be said that M/s. Mangalam Drugs & Organics Ltd. have violated Rule 26 of the Central Excise Rules, 2002. He relied on the decision of Tribunal in case of Apple Sponge & Power Ltd. 2018 (5) TMI 772 to assert that under Rule 26 no penalty can be imposed on M/s. Mangalam Drugs & Organics Ltd. Ld. Counsel also relied on the decision of Hon'ble Apex Court in case of Punjab Tractor 2005 (181) ELT 380 (SC) to assert that when the credit is admissible to the buyer, there is case of Revenue neutrality. It is seen that the facts in the case of Punjab Tractor (supra) are different. In the said case the appellant had paid duty first on exempted good, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made there under like claiming of Cenvat credit under the Cenvat Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater)." On plain reading of Rule 26, it is observed that this penalty can be imposed in two situations. Under subrule (1), the penalty is imposable on the person who deals with the goods which is liable for confiscation. In the present case, it is the case of the department that the appellant has not received the input. Therefore, there is no question of dealing with the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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