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TMI Blog2022 (3) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... iron and steel scrap, sponge iron, ferro alloys, MS Ingots ( HC) from the raw material providers and were availing the CENVAT Credit facility under the CENVAT Credit Rules, 2004. On 02.05.2008, the officers of the Directorate General of Central Excise Intelligence, Regional Unit, Indore (hereinafter referred to as DGCEI) searched the business premises of M/s. Jain Ispat. Certain documents including the photocopies of Lorry receipts of M/s. New Annapurna Roadlines, Pithampur showing the transportation of different iron and steel scrap under cennvatable invoices issued to M/s. ASL. Scrutiny of these documents and further investigations indicated that these were invoices based whereupon M/s ASL were wrongly availing the CENVAT credit on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted on behalf of M/s. Jain Ispat that penalty upon them has been imposed under Rule 26 of Central Excise Rules, 2002. However no sub rule has been mentioned in the Show cause Notice. Otherwise also the penalty for issuing false / fake notices can only be imposed after invocation of sub rule (2) of Rule 26 of Central Excise Rules 2002 with effect from 1.3.2007. But the said sub rule has not been invoked in the Show Cause Notice. The invoices in question are otherwise for the period prior to said introduction of said rule. The imposition of penalty is liable to be set aside on the sole ground. Learned Counsel has laid emphasis on decision of Apex Court in the case of Amrit Foods vs. CCE, UP reported as [2005-TIOL-164-SC-CX]. It is ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has laid emphasis upon the decision of Hon'ble Allahabad High Court in the case of Continental Cement vs. Union of India reported as [2014 (309) E.L.T. 411 (All.)] to prove that invoices were issued without transportation of goods. 5. To rebut these submissions learned Departmental Representative has laid emphasis upon para 19, 20 and 22 of the Order-in-Original / Order under challenge where in the cross examination of the transporter as was conducted at the direction of Order of this Tribunal dated 21.2.2017 has been appreciated, where outrightly they had denied to have transported the imports/ raw material from M/s. K G Ispat and M/s. Jain Ispat to M/s. ASL. The earlier invoices were showing sale of invoices to M/s. ASL which were reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by him is that the consumption of raw material was handled by different employees at different times of the factory. Hence he was not in a position to explain the observed shortage at the time of factory visit. He rather specifically admitted that shortage may be due to clearance of finished goods from his factory by his employees without his knowledge and also there could be accounting difference of raw material in their record without actually receiving the same physically in their factory. The said explanation have clearly been admitted to be the reason for the instant shortage of finished goods as well as of scrap found in their factory on 29.9.2008 by the officer of DGCEI. Though names of employees were provided but none of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Lal Singh Kourav, proprietor of M/s. Annapurna Road lines Pithampur. But the said cross examination when read in the light of his entire submissions the only outcome is M/s. Annapurna Roadlines have not provided any transportation facility to transport any goods from M/s. Jain Ispat to M/s. ASL. The recovered documents from M/s. ASL, on the contrary, rather shows receipts of inputs from M/s. Jain Ispat during the period from 28.2.2008 to 21.3.2008 under the cover of lorry receipts of M/s. Annapurna Roadlines, proprietor Shri Lal Singh Kourav. Hence, I do not find any infirmity in the findings of the Adjudicating Authority as against M/s. Jain Ispat when a penalty of Rs. 10,00,000/- has been imposed upon them. Order to that extent i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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