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TMI Blog2011 (2) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... redit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 has been imposed on the Appellant firm, there is no justification for separate penalty of Rs. 50,000/- on the appellant firm under Rule 25 of the Central Excise Rules, 2002 Reduced penalty - since in this case the entire amount of wrongly taken cenvat credit along with interest had been paid even prior to the issue of show cause notice, they should get the benefit of reduced penalty under first proviso to Section 11AC based on the judgement of the Hon’ble Delhi High Court in the case of K.P. Pouches reported in [2008 (1) TMI 296 - HIGH COURT OF DELHI] and accordingly, penalty imposable would be 25% of the wrongly taken cenvat credit - E/2295/2008-SM(BR) - 163/2011-SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2006 and 19-1-2006 and 23-1-2006 stated that the goods, in question, had been purchased directly from M/s. Sulabh Impex Corporation, that during the relevant period, Shri Neeraj Agarwal was the head of the Purchase Department during the relevant time and he was no longer working in the company. However, Shri Sunil Mittal, Proprietor of M/s. Sulabh Impex Corporation in his statement tendered under Section 14 of the Central Excise Act, 1944, stated that though he was having a IEC Code No., he was too poor to make any imports, that often persons were importing brass scrap in the name of his firm using his IEC Code No., that he is not aware as to what happened to the goods imported in the name of his firm, and that he was only issuing invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,96,782/- was imposed on M/s. Sulabh Impex Corporation under Rule 15 of the Cenvat Credit Rules, 2004. 1.3 On appeal to Commissioner of Central Excise (Appeals), the above order was upheld except for reduction of penalty on Shri Sunil Dutt to Rs. 50,000/-. 1.4 Against the above order, the appeal has been filed by the Appellant Company. 2. Heard both the sides. 2.1 Shri J.P. Kaushik, Advocate, ld. Counsel for the appellants pleaded that the entire case against the appellant is based on the statement of Shri Sunil Mittal, Proprietor of M/s. Sulabh Impex Corporation, wherein he stated that most of invoices issued by the appellant were having fake bills of entry mentioned on them and that no goods have been supplied, that from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Advocate also emphasised that the statement dated 10-1-2006 of Shri Sunil Mittal is a general statement and it does not mention either the appellant firm or the four invoices issued to the appellant company and, therefore, from the statement of Shri Mittal, no adverse conclusion regarding the genuineness of the invoices can be drawn. 2.2 Shri R.K. Gupta, ld. Departmental Representative, defending the impugned order pleaded that Shri Mittal in his statement dated 10-1-2006 has explained the modus operandi adopted by him for issue of fake invoices, that in his statement, he has clearly admitted that he had never supplied any goods along with cenvat invoices to the parties, that the parties had taken only bills from him and goods were pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-2004 issued by M/s. Sulabh Impex Corporation. The allegation of the department, which is based mainly on the statement of Shri Sunil Mittal, Proprietor of Sulabh Impex Corporation, is that these are bogus invoices issued by the Sulabh Impex Corporation without supplying any goods. On the other hand, the appellant s plea is that since Shri Sunil Mittal in his statement dated 10-1-2006 has not mentioned that the appellant company is a party to whom the bogus invoices had been issued without supplying any goods, and from his statement it cannot be concluded that the invoices, in question, are bogus, more so, when there is an evidence showing the supply of goods, in form of GRs issued by the transporters, dharamkanta s receipts, the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Mittal. In view of this, the duty demand has been rightly upheld against the Appellant. 5. As regards the plea of Shri J.P. Kaushik, ld. Counsel for the appellants that when penalty under Rule 15(2) Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 has been imposed on the Appellant firm, there is no justification for separate penalty of Rs. 50,000/- on the appellant firm under Rule 25 of the Central Excise Rules, 2002, I find that there is merit in this plea, as provision of Rule 25 of Central Excise Rules, 2002 are not attracted in this case. The penalty of Rs. 50,000/- on the appellant under Rule 25 is, therefore, set aside. 6. As regards the other plea of Shri J.P. Kaushik that since in this case the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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