2023 (2) TMI 1041 - AT - Central Excise

Levy of penalty on the appellant firm and the other appellant, being the partner of the firm - passing on on inadmissible cenvat credit by issuing fake invoices without actual supply of goods - HELD THAT - The order of the Court below is vitiated as it has not decided the preliminary question or ground, that is non-receipt of the show cause notice by these appellants. Accordingly, these appeals are allowed by way of remand. The impugned order is set aside. The Adjudicating Authority is directed to record the service of show cause notice and thereafter, proceed to re-adjudicate the matter in accordance with law, after giving adequate opportunity of hearing to the appellants. Appeal allowed by way of remand.

Summary

Issues:
Whether penalty rightly imposed on appellant firm and partner for passing on inadmissible cenvat credit by issuing fake invoices without actual supply of goods?

Analysis:
The case involved the appellant firm, a partnership firm, and its partner being accused of passing on inadmissible cenvat credit by issuing fake invoices without actual supply of goods. The Revenue alleged that the appellants purchased copper scrap from a registered manufacturer and supplied it to another entity on cenvatable invoices without actual supply of goods. The Revenue conducted an investigation and found discrepancies at the premises of the manufacturer, leading to the imposition of penalties under relevant provisions. The appellants contested the allegations, claiming proper transactions, payments through banking channels, and maintenance of records. They argued that the statements relied upon by the Revenue were generic and lacked corroboration. They also highlighted the lack of evidence showing procurement of goods from alternate sources by the recipient entity. The appellants maintained that they had received the goods physically and conducted transactions legitimately.

The Commissioner, however, upheld the penalties, emphasizing the statements of the manufacturer's directors denying any manufacturing activity and the absence of machinery or electricity connection for production. The Commissioner rejected the limitation ground, invoking the proviso to section 11 due to conscious wrongdoing. Additionally, the Commissioner justified the imposition of penalties on both the firm and the partner, citing the partner's involvement in the firm's operations and awareness of the wrongdoing. The appellants then appealed to the Tribunal, arguing that the statements of the manufacturer's representatives were general and did not directly implicate them. They contended that penalties were unjustified and the show cause notice was time-barred. The appellants presented case laws in support of their arguments against the penalties and the separate penalty imposition on the firm and the partner.

After considering the arguments, the Tribunal found the lower court's order flawed for not addressing the preliminary issue of non-receipt of the show cause notice by the appellants. Consequently, the Tribunal allowed the appeals by way of remand, setting aside the impugned order and directing the Adjudicating Authority to properly record the service of the show cause notice and re-adjudicate the matter while providing adequate hearing opportunities to the appellants. The appeals were allowed by way of remand, emphasizing procedural fairness and compliance with legal requirements.