TMI Blog2023 (3) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... s overall in-charge and involved in the fraudulent availment of Cenvat credit. From the plain reading of Rule 15(1), it is found that a person shall be liable to penalty who takes or utilize Cenvat credit in respect of input or capital goods or input services wrongly or in contravention of any of the provisions of these Rules - In the facts of the present case, it is M/s. Diamond Power Transformers Limited who has availed fraudulent Cenvat credit, the appellant being employee Director has not availed Cenvat credit for himself therefore, Rule 15(1) is not applicable on the person who has neither availed Cenvat credit nor is the beneficiary of Cenvat credit. Accordingly, penalty under Rule 15(1) was wrongly imposed on the appellant. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty in impugned order-in-original, the appellant filed the present appeal. 2. Shri S. Suryanarayanan, learned Counsel appearing on behalf of the appellant submits that appellant Shri Pranatharthiharan Sridharan is a technocrat and employed as Director operations and looking after production activities of the Company. The appellant being a technical person he would not involved in the offense of wrong availment of credit therefore, penalty imposed under Section 15(1) is not imposable. He further submits that the show cause notice is time-barred as the same was not served to the appellant in time therefore the show cause notice is liable to be quashed being time-barred. He placed reliance on the following judgments:- (a) Mukesh Dani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find that a person shall be liable to penalty who takes or utilize Cenvat credit in respect of input or capital goods or input services wrongly or in contravention of any of the provisions of these Rules. In the facts of the present case, it is M/s. Diamond Power Transformers Limited who has availed fraudulent Cenvat credit, the appellant being employee Director has not availed Cenvat credit for himself therefore, Rule 15(1) is not applicable on the person who has neither availed Cenvat credit nor is the beneficiary of Cenvat credit. Accordingly, penalty under Rule 15(1) was wrongly imposed on the appellant. This issue has been considered by this Tribunal in the case of Mukesh Dani vs. CCE, Surat (supra) wherein the following order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (3) If any person, takes CENVAT credit in respect of input services, wrongly or without taking reasonable steps to ensure that appropriate service tax on the said input services has been paid as indicated in the document accompanying the input services specified in rule 9, or contravenes any of the provisions of these rules in respect of any input service, then, such person, shall be liable to a penalty which may extend to an amount not exceeding ten thousand rupees. (4) In a case, where the CENVAT credit in respect of input services has been taken or utilized wrongly by reason of fraud, collusion, wilful mis-statement, suppression of facts, or contravention of any of the provisions of the Finance Act or of the rules made ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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