2015 (10) TMI 1366 - AT - Central Excise

Fraudulent Duty drawback - Availment of inadmissible Cenvat Credit - penalty under Rue 26 of the Central Excise Rules - Held that - penalty is imposable under Rule 26 during the relevant period if any person who acquires the possession or not or is in any way concerned transporting removing, depositing, keeping, concealing, selling or purchasing or in any manner deals with excisable goods, as in this case the allegation against the appellant is that the appellant has issued only invoices not supplied the excisable goods to M/s. Pawan Jain & Sons to avail inadmissible Cenvat Credit. Therefore, from the facts, it is clear that appellant has not dealt with excisable goods for availment of inadmissible Cenvat Credit by M/s. Pawan Jain & Sons and merely issued invoices. The provision for the person issuing invoices without supply of goods have come into force for imposition of penalty under Rule 26 has come into force w.e.f. 01.03.2007 and the said provision was not instituted during the relevant period. Therefore, I hold that appellants have not dealt with excisable goods. Therefore, penalty under Rule 26 is not imposable on appellants. - Decision in the case of Duggar Fiber Ltd. 2015 (9) TMI 246 - CESTAT NEW DELHI followed - Decided in favour of assessee.

Summary

Issues:
- Imposition of penalty under Rule 26 of the Central Excise Rules 2002 on the appellants for issuing invoices without supplying goods to avail inadmissible Cenvat Credit to another party.
- Whether the appeals can be decided independently or are dependent on the outcome of the appeal filed by the main noticee.
- Violation of the principle of natural justice due to denial of cross-examination of transporters.
- Applicability of penalty under Rule 26 during the relevant period.

Analysis:

1. Imposition of Penalty under Rule 26:
The case involved allegations against the appellants for issuing invoices without supplying goods to enable another party to fraudulently claim duty drawback. The penalty was proposed under Rule 26 of the Central Excise Rules 2002. The appellant argued that they did not deal with excisable goods for the purpose of availing inadmissible Cenvat Credit. The Tribunal held that the provision for imposing penalties under Rule 26 for issuing invoices without supplying goods came into force from March 1, 2007, which was not applicable during the relevant period of the case. Therefore, the Tribunal concluded that the penalties were not imposable on the appellants based on the facts presented.

2. Independence of Appeals:
The respondent argued that the appeals could not be decided independently as the appeal filed by the main noticee was pending before the Tribunal. However, the Tribunal found that the issues against the main noticee and the appellants were different. The main noticee was accused of availing duty drawback fraudulently, while the appellants were accused of facilitating this by issuing invoices without supplying goods. As the issues were distinct, the Tribunal decided that the appeal against the appellants could be independently adjudicated.

3. Violation of Natural Justice:
The appellant contended a violation of natural justice due to the denial of cross-examination of transporters by the Adjudicating Authority. The appellant argued that the penalty was imposed based on third-party statements without granting cross-examination. The Tribunal noted the denial of cross-examination and held that the principle of natural justice was violated. This violation was a ground for setting aside the impugned order.

4. Applicability of Penalty under Rule 26:
The Tribunal analyzed the provisions of Rule 26 during the relevant period concerning penalties for certain offenses related to excisable goods. It was observed that the appellants had not dealt with excisable goods but had only issued invoices without supplying the goods. As the provision for penalties in such cases came into force after the relevant period, the Tribunal held that penalties under Rule 26 were not imposable on the appellants. A similar view was supported by a previous case, leading to the setting aside of the penalties imposed on the appellants.

In conclusion, the Tribunal set aside the penalties imposed on the appellants under Rule 26, allowing the appeals with consequential relief, emphasizing the non-applicability of the penalty provision during the relevant period based on the specific circumstances of the case.