2022 (6) TMI 490 - AT - Central Excise

Levy of penalty u/r 26 of CER - Availment of fraudulent refund under Notification No. 56/2002-CE dated 14.11.2002 - refund availed on the basis of falsified documents and issuance of invoices showing removal of finished goods, namely copper ingots - it is also alleged that no production activity had taken place in the factory premises and only paper transactions were undertaken - HELD THAT - On the similar set of facts and circumstances, the department in OMEGA ROLLING MILLS P. LTD. VERSUS C.C.G. ST. PALGHAR. 2018 (7) TMI 2261 - CESTAT MUMBAI proceeded against the buyer of the alleged goods M/s. Omega Rolling Mills Pvt. Ltd. On appeal against order dated 28.11.2017 passed by the learned Commissioner (Appeals), Mumbai, this Tribunal has held that based on the investigation conducted by the DGCEI in the premises of M/s VKM, the proceedings were initiated against the appellant, alleging fraudulent availment of Cenvat credit. Since, the order confirming the demands against M/s VKM has already been set aside by the Tribunal vide order on 23.05.2018 on the ground that it had manufactured the impugned goods in its factory, I am of the view that the adjudged demands confirmed against the appellant cannot be sustained for judicial scrutiny. From the above observations made by the Tribunal, the issue is crystal clear that in the present case, the goods were in fact supplies by the appellant M/s. V.K. Metal Works to M/s. Omega Rolling Mills Pvt. Ltd. and the transporter M/s. Kanpur Kashmir Roadways was engaged for facilitating transportation of goods from the appellant s factory to the buyers destination. Hence, the imposition of penalty under Rule 26 ibid on both the appellants cannot be sustained for judicial scrutiny. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against imposition of penalty under Rule 26 of the Central Excise Rules, 2002 for fraudulent refund availed by the appellant on the basis of falsified documents and invoices showing removal of finished goods without actual production activity.

Detailed Analysis:

1. Imposition of Penalty: The appeal was directed against an order upholding the penalty imposed by the Commissioner under Rule 26 of the Central Excise Rules, 2002. The department alleged that the appellant availed a fraudulent refund under Notification No. 56/2002-CE based on falsified documents and invoices showing removal of finished goods without actual production activity at the factory premises. The appellant argued that the goods were actually supplied to another entity, and proceedings against the buyers were favorably considered by the Tribunal in a previous order. The appellant contended that since the goods were actually supplied, the penalty should not be imposed.

2. Transportation of Goods: The Tribunal examined similar circumstances where proceedings were initiated against the buyer of the goods, M/s. Omega Rolling Mills Pvt. Ltd. The Tribunal found that the consignment note issued by the transporter contained necessary details, and the transport documents evidenced the movement of goods from the factory to the buyer's destination. Based on the investigation, the Tribunal concluded that the demands against the appellant could not be sustained as the goods were indeed supplied to the buyer, and the transporter facilitated the transportation. Consequently, the imposition of penalty under Rule 26 on both appellants was deemed unsustainable.

3. Relevance of Previous Judgments: The judgment cited by the Revenue had no relevance to the present case as it did not involve the buyer of the subject goods. The Tribunal highlighted that the appeal of the buyer had been allowed in a previous order, which was not challenged by the Revenue. Therefore, the question of non-supply of goods to the buyer could not be raised at that stage. Ultimately, the impugned order was set aside, and the appeals filed by the appellants were allowed concerning the imposition of penalties on them.

In conclusion, the Tribunal found that the penalty imposed on the appellants for fraudulent refund availed under falsified documents and invoices was unsustainable as the goods were actually supplied to the buyer. The Tribunal emphasized the importance of proper documentation and transportation evidence in determining the validity of the allegations. The relevance of previous judgments and the involvement of the buyer in the dispute were crucial factors in the Tribunal's decision to set aside the penalties imposed on the appellants.