TMI Blog2022 (1) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... e claimed by them. Therefore, this defense of the appellant is of no help to them. It is also a fact on record that M/s Nisha Industries who had availed the Cenvat Credit against the demand of Cenvat Credit amount, they had opted for the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Though the opting of SVLDRS should not have any bearing on the other cases who are contesting before this Tribunal but it shows that M/s Nisha Industries has accepted the demand of fraudulent Cenvat Credit. The appellant is liable for penalty under Rule 26 (2) for wrongly passing of the credit - penalty imposed is maximum amount which is provided in the Rule 26 (2) (ii) - the appellant deserve some leniency on the quantum of penalty - penalty r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the vehicle mentioned in the invoice no. 68 in his statement deposed that his vehicle was never used to transport the said goods; that he had never heard the name of the appellant; he further stated that his vehicle's capacity is only of 500 kgs; that the vehicle no. mentioned in invoice no. 90 is a maxi/taxi as per the RTO report which is incapable of carrying 16,350 kgs stated to have been transported through the said vehicle. the Director of the appellant on being shown the evidence failed to offer any reasoning for the discrepancy. he vaguely stated that the goods may have been sent later on and that the vehicle number may have been wrongly mentioned in the invoice. The said Show Cause Notice in addition to proposing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices from M/s Nisha Industries. He submits that the department s case is based only on the statement without corroborative evidence to prove that the appellant was involved in any clandestine removal of goods, even the buyer did not deny the receipt of the goods from the appellant and the goods are properly accounted for in the RG23 A Pt. I register. There was no evidence of cash transaction between the parties which can provide that the goods were being removed clandestinely. The only basis of imposition of penalty was assumption by the department without substantial proof. 2.1 As regards the invoice no. 68 dated 17/07/2008, only ground is that the owner of the vehicle denied to have transported the goods. The goods were transported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in RG-23 Part II. Therefore, it would be concluded that the goods were not delivered with invoice. He submits that the appellant have not managed the transportation of goods but the same was provided by the buyer M/s Nisha Industries. Therefore, the Director of the appellant did not give any confession of non-supply of goods covered/removed under disputed invoices to the buyer. 2.4 In view of the above facts, appellant submitted that the quantity of goods removed under excise invoices no. 68 dated 17.07.2008, 90 dated 20.08.2008 and 97 dated 10.09.2008 have been properly accounted for in the books of accounts and duty has been paid on the same which is reflected in Monthly returns i.e ER-1 of respective month as well as the sale procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant, there has been error in writing the vehicle no. in the purchase invoice and the goods were actually transported in vehicle bearing No. GJ 2V5889. However, Shri Bhogilal Nath owner of the vehicle No. (GH 2Y 5889 as mentioned in invoice) vide his statement dated 03.02.2010 has denied any transportation of the same. Further, in case of invoice No. 90/20.08.08 vehicle mentioned in the invoice is a Taxi/ Maxi as per the report of RTO and hence incapable to transport the goods. The appellant in this regard submits that the vehicle no. mentioned in the invoice is incorrect and stated that goods were not transported in the vehicle mentioned in the invoice No. 68 but adds that goods might have been delivered later but no such eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble them to fraudulently avail the Cenvat credit. I find that the Cenvat credit has been taken by M/s. Nisha Industries (Manufacturing as well as Dealer unit) without receipt of goods mentioned in the invoices and the same is required to be recovered. 11. From the above discussion, I find that appellant in collusion with M/s. Nisha Industries committed the offence of passing on the fraudulent Cenvat credit which in turn enabled M/s. Nisha Industries to evade payment of duty and therefore liable to penalty in terms of Rule 26 of the Central Excise Rules, 2002. Therefore, the above discussion leads me to the view that the impugned order is correct in all respects and needs to be upheld. I find that the adjudicating authority is justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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