2019 (1) TMI 177 - HC - Central Excise

Imposition of penalty u/r 26 of CER - fraudulent availment of CENVAT Credit - petitioners are seeking to contend that, although they made a fraudulent representation before the authority in obtaining SENVAT credit, then when the authority found the actual fact that, the petitioners did not indulge in any manufacturing activity, there is no reason for imposition of penalty under the Act of 1944 - Held that - Such a contention is downright dishonest. The petitioners were well aware about the benefits of CENVAT credit under the provisions of the Act of 1944. It was within their personal knowledge that, the legal entity viz., V.K. Udyog Ltd., was not carrying on any manufacturing activity. In fact, V.K. Udyog Ltd. is under the control and management of the three petitioners before me. These three petitioners cannot feign ignorance of the activities of V.K. Udyog Ltd. Knowing the activities of V.K. Udyog Ltd. they made a false representation to the authorities to avail of CENVAT credit. The are liable for such fraudulent activities - petition dismissed - decided against petitioner.

Summary

Issues:
Imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on individuals connected with a company for fraudulent activities in availing CENVAT credit.

Analysis:

The judgment involves three writ petitions concerning the imposition of penalties on individuals associated with a company for fraudulent activities related to CENVAT credit. The petitioners argue that Rule 26 of the Central Excise Rules, 2002 is not applicable to them and that the show cause notice was vague and did not address their objections. They contend that the company was wrongly declared as a manufacturer to obtain benefits under a scheme, while in reality, it was a trader. The petitioners claim that since the transactions did not fall under the Central Excise Act, 1944, the penalties imposed are unlawful.

The Court notes that in a previous case involving the company, it was found that the company falsely declared itself as a manufacturer to gain undue benefits under a scheme. The Court rejected the jurisdictional and applicability contentions raised by the petitioners. The current petitioners were involved with the affairs of the company, and a show cause notice alleged their involvement in fraudulent activities resulting in defalcation of government funds through illegal CENVAT credit availing. The petitioners challenge the lack of specific allegations in the notice, but the order in original substantiates their involvement and imposes penalties under Rule 26 of the Central Excise Rules, 2002.

The petitioners argue that after the authority discovered the lack of manufacturing activities, no penalties should be imposed. However, the Court finds their contention dishonest, stating that the petitioners were aware of the company's activities and knowingly misrepresented to avail CENVAT credit. As the petitioners were instrumental in the company's affairs, they are held liable for the fraudulent activities. Consequently, the Court dismisses the writ petitions (W.P. No. 583 of 2018, W.P. No. 584 of 2018, and W.P. No. 585 of 2018) with no order as to costs.