2011 (5) TMI 519 - AT - Central Excise

Cenvat Credit denied - as per dept. assessee is availing credit by fraudulent means on the basis of bogus invoices procured without actually receiving any material - separate penalty on company and its Director - Held that - The company and its Director are two different entities and in view of the role played by the Director of procuring invoices without actually receiving any goods, separate penalty can always be imposed on the Director. Thus do not agree with the Commissioner(Appeals) s observation that simultaneous penalty on company and its Director cannot be imposed. Thus Commissioner(Appeals) s order setting aside penalty on the respondent is set aside and in this regard the Order-In-Original of Deputy Commissioner is restored. Revenue s appeal is allowed.

Summary

Issues: Allegation of fraudulent Cenvat Credit availed by a company based on bogus invoices. Imposition of penalties on the company and its Director. Appeal against the Commissioner(Appeals) order setting aside penalty on the Director.

Analysis:
1. The case involves the respondent, who is the Director of a company manufacturing Non-Alloy Steel Ingots. Allegations state that the company availed Cenvat Credit based on bogus invoices from registered dealers without receiving any goods. The Deputy Commissioner confirmed a Cenvat Credit demand against the company and imposed penalties on both the company and its Director.

2. The Commissioner(Appeals) upheld the Cenvat Credit demand and penalty on the company but set aside the penalty on the Director, stating that separate penalties on the company and its Director are not imposable. This decision led to the department appealing against the order of the Commissioner(Appeals).

3. During the hearing at the Appellate Tribunal, despite issuing a notice to the respondent, no representation was made on their behalf. As per Rule 21 of CESTAT Procedure Rules, the case was decided ex-parte due to the absence of the respondent.

4. The Departmental Representative argued that penalties can be imposed on both the company and its Director if the Director's role justifies such action, emphasizing that they are distinct entities. The Tribunal considered this argument, along with the records presented.

5. The Tribunal concluded that fraudulent availing of Cenvat Credit through bogus invoices, without receiving any material, indicates the Director's involvement. The Tribunal disagreed with the Commissioner(Appeals) regarding the imposition of penalties on both the company and its Director. It was determined that separate penalties can indeed be imposed on the Director for their role in the fraudulent activity. Consequently, the Tribunal set aside the Commissioner(Appeals) order and restored the Deputy Commissioner's Order-In-Original, allowing the Revenue's appeal.