2018 (7) TMI 321 - AT - Central Excise

Penalty u/s 11AC - fraudulent availment of CENVAT credit - fake invoices without actual receipt of goods - paper transactions - Held that - It is evident from the record that the Assessee reversed the credit availed on the basis of the invoices issued by the two supplier companies. It was found that the credit was availed on the basis of the invoices without actual receipt of the goods. Apparently, fact of reversal of credit is linked with non-receipt of the inputs and no other conclusion can be drawn - the Order of the Commissioner (Appeals) regarding the setting aside of the penalties cannot be sustained. The Tribunal in the identical situation in the case of M/s. Steel Centre 2017 (9) TMI 1251 - CESTAT KOLKATA upheld the demand of CENVAT Credit along with interest and imposition of penalty on the assessee and reduced the penalties on the co-noticees. Penalty imposed on M/s. Bindawala Cables & Conductors Limited is upheld subject to the option of payment of 25% of duty within 30 days under Section 11AC would be allowed - Penalty imposed on Shri Bhagwandas Bindawala is set aside - Penalties imposed on M/s. Bindawala Electricals Industries Ltd. and M/s. Kritika Wires Pvt. Ltd. are reduced to ₹ 2 Lakhs each. Appeal disposed off.

Summary

Issues:
Fraudulent availment of CENVAT Credit based on fake invoices, denial of CENVAT Credit, imposition of penalties on the assessee and other persons, setting aside of penalties by the Commissioner (Appeals), appeal against setting aside of penalties by the Revenue.

Analysis:
1. The case involved M/s. Bindawala Cables & Conductors Limited, engaged in manufacturing Alluminium Conductors, who wrongly availed CENVAT Credit on M.S. Wire/ Wire Rod based on invoices from two companies without receiving the goods. The Adjudicating authority disallowed the credit and imposed penalties on the assessee and others. The Commissioner (Appeals) confirmed the demand but set aside the penalties.

2. The Revenue appealed, arguing fraudulent credit availment justifies penalties, citing a similar case where penalties were upheld. The Respondents contended they received and utilized the goods, reversing the credit when found unsuitable for production, with no evidence of non-receipt presented by the Revenue.

3. The Tribunal found the assessee did not seriously refute non-receipt allegations, but as the credit was already reversed, the issue was not pursued. The Revenue claimed fraudulent credit availment, seeking penalty under Section 11AC. The Commissioner (Appeals) set aside penalties due to lack of evidence of non-receipt.

4. The Tribunal disagreed with the Commissioner (Appeals), noting the credit was availed without receiving the goods, linking credit reversal to non-receipt. Referring to a similar case, the Tribunal upheld the demand and penalties on the assessee, reducing penalties on others involved in the fraudulent credit availment.

5. Consequently, the Tribunal modified the Commissioner (Appeals) order, upholding penalties on M/s. Bindawala Cables & Conductors Limited, setting aside penalties on Shri Bhagwandas Bindawala, and reducing penalties on M/s. Bindawala Electricals Industries Ltd. and M/s. Kritika Wires Pvt. Ltd. The Revenue's appeals were disposed of accordingly, along with the cross objection filed by M/s. Bindawala Cables & Conductors Ltd.