TMI Blog2019 (2) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial prerequisite for imposition of penalty. In the instant dispute, there is no allegation that the impugned goods did not come into possession of the appellant. On the contrary, the entire cases been built around the goods not having passed into the possession of the buyers named in the 703 invoices and, therefore, the goods are not offending even if sold to buyers who are not on record - In the absence of any offence in relation to the goods that are alleged to have been not supplied to persons on record, rule 26 cannot be invoked. On this restriction in and non-applicability of, rule 26 of Central Excise Rules, 2002, the impugned order is liable to be set-aside. Appeal allowed - decided in favor of appellant. - APPEAL NO: E/2016/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this very flimsy evidence that the original authority had held the firm to have been complicit in fictitious availment of CENVAT credit and deserving of penalty of that magnitude. 3. He contends that the lack of the goods that were held liable to confiscation deprived the imposition of penalty under rule 26 of Central Excise Rules, 2002 of legality and propriety. Narrating the provisions of rule 26, which premises that liability to confiscation is a necessary prerequisite, he relies upon the decision of the Tribunal in Premier Ispat Ltd v. Commissioner of Central Excise, Kanpur [2018 (360 ) ELT 109 (Tri-All)], Sharda Synthetics Limited v. Commissioner of Central Excise, Raigad [2014 (314) ELT 411 (Tri Mumbai)] and Nicholas D Souza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot categorically evidence that the records of the relevant years were conclusive enough to arrive at the finding that the goods did not arrive at the destination in the invoices. He places reliance on the decision of the Tribunal in Liberty Whiteware Ltd v. Commissioner of Central Excise Service Tax, Jaipur [2017 (358) ELT 422 (Tri-Del)], in Shakshi Makfin Pvt Ltd v. Commissioner of Central Excise, Punchkula [2016 (343) ELT 972 (Tri-Chan.)] and in OPG Metals Pvt Ltd v. Commissioner of Central Excise, Tiruchirappalli [2016 (343) ELT 230 (Tri-Chennai)]. According to him, in identical circumstances, the Tribunal, while deciding upon the dispute in Garima Enterprises (P) Ltd v. Commissioner of Central Excise, Delhi-IV. [2005 (182) ELT 106 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord of any investigations having been pursued with the recipients on record to ascertain the receipt of the goods at the destination. We also take note that despite the retraction of the statement of the supervisor that indicted the appellant, the investigation failed to obtain facts that could have corroborated the statement and sustain it even after the person had expired. On the contrary, the appellant had produced statements, as well as extracts from the books maintained by the recipients, before the lower authorities, as evidence of genuiness of the transaction that was alleged to be fiction. We also find that the certification issued by octroi authorities is not only limited to a few of the invoices and that the certification itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appellant cannot sustain. We also observe that the Commissioner has referred to the provisions of Income-tax Act regarding issue of cheque for payment in excess of ₹ 25,000/-. If there was any violations of the provisions of the I.T. Act, it was for the Income-tax authorities to have taken objection in that regard. The Central Excise Law does not permit the Commissioner of Central Excise to assume power under the Income-tax Act. There was therefore, no need for the Commissioner to have recorded such a finding when he is discharging the functions of Commissioner of Central Excise. With this observation, we set aside the impugned order and allow the appeal with consequential relief if any.'... . that partnership firms cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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