2022 (1) TMI 11 - AT - Central Excise

Imposition of penalty under Rule 26 (2) of CER - availment of irregular CENVAT Credit - invoices without actual receipt of inputs - HELD THAT - The entire case was made out on the basis of the vehicles which were shown to have transported the goods were not capable to transport such bulky goods. The appellant s defense on this is that there is a clerical error in mentioning the vehicle no.; that instead of GJ 2V 5889, dispatch clerk wrote the vehicle no. as GJ 2Y 5889. Similarly instead of GJ 18U 1999, it should be GJ 8U 1999. There is no corroboration to this submission of the appellant that whether the goods were transported through the vehicle claimed by them. Therefore, this defense of the appellant is of no help to them. It is also a fact on record that M/s Nisha Industries who had availed the Cenvat Credit against the demand of Cenvat Credit amount, they had opted for the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Though the opting of SVLDRS should not have any bearing on the other cases who are contesting before this Tribunal but it shows that M/s Nisha Industries has accepted the demand of fraudulent Cenvat Credit. The appellant is liable for penalty under Rule 26 (2) for wrongly passing of the credit - penalty imposed is maximum amount which is provided in the Rule 26 (2) (ii) - the appellant deserve some leniency on the quantum of penalty - penalty reduced from ₹ 12,94,547/- to ₹ 5,00,000/-. Appeal allowed in part.

Summary

Issues:
1. Alleged wrongful availment of CENVAT credit without actual receipt of inputs.
2. Removal of finished goods without payment of duty.
3. Imposition of penalty under Rule 26(2) of the Central Excise Rules, 2002.

Issue 1: Alleged wrongful availment of CENVAT credit without actual receipt of inputs:
The case involved an investigation against a company for allegedly availing CENVAT credit on invoices without receiving the actual goods. The appellant, a supplier to the company under scrutiny, faced allegations of supplying goods without accompanying them, leading to discrepancies in vehicle capacity and actual goods transported. The appellant argued that the department lacked substantial proof and that the goods were properly accounted for in the records. The appellant cited clerical errors in vehicle numbers and emphasized that the buyer did not deny receiving the goods. The department's case relied on assumptions without concrete evidence, leading to a penalty imposition upheld by the Commissioner (Appeals).

Issue 2: Removal of finished goods without payment of duty:
The investigation revealed that finished goods were found at manufacturing and dealer premises without proper accounting and removal without duty payment. The appellant's defense included explanations for the discrepancies in vehicle numbers and emphasized the proper accounting of goods in Excise records. The department's findings were based on statements denying transportation and discrepancies in debit notes, highlighting a lack of corresponding supply of inputs. The Commissioner (Appeals) upheld the penalty, citing collusion between the appellant and the company to fraudulently avail CENVAT credit, leading to duty evasion.

Issue 3: Imposition of penalty under Rule 26(2) of the Central Excise Rules, 2002:
The penalty imposed under Rule 26(2) was contested by the appellant, arguing clerical errors in vehicle numbers and proper accounting of goods. The Tribunal upheld the penalty but reduced the amount considering the circumstances and the company's acceptance of fraudulent CENVAT credit demands under the Sabka Vishwas Scheme. The Tribunal found the appellant liable for wrongly passing the credit but granted leniency by reducing the penalty amount.

This judgment addressed the allegations of wrongful availment of CENVAT credit and removal of finished goods without duty payment, ultimately upholding the penalty imposed under Rule 26(2) while providing some leniency in the penalty amount. The detailed analysis considered the discrepancies in vehicle numbers, proper accounting of goods, and the lack of concrete evidence to substantiate the allegations, leading to the Tribunal's decision to partly allow the appeal and modify the penalty amount.