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TMI Blog2012 (5) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 12 of Central Excise Rules, demand of wrongly availed Cenvat credit can be made only from the manufacturer. Appellant was not a party to the entire transactions and has availed the credit on the basis of invoices issued by M/s. Gautam Steel Traders who had represented themselves to be a first stage dealer. As such, there was no mala fide on the part of the respondent to consider themselves as second stage dealer and to act accordingly. I find no reasons for imposition of penalty upon them. I find that even in the case of SDL Auto P. Ltd. [2010 (1) TMI 377 - CESTAT, NEW DELHI], where the demand of wrongly availed Cenvat credit was confirmed against the manufacturer, the Tribunal set aside the penalty even on the person who availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. Revenue s contention is that the inputs were sold by the manufacturer, i.e., M/s. Swastika Pipes Ltd. and M/s. Allied Poles (India) Ltd. to M/s. Rameshwar Das Devi Dayal (P) Ltd. Though the same were consigned directly to M/s. Gautam Steel Traders, M/s. Rameshwar Das Devi Dayal (P) Ltd. is required to be considered as the first stage dealer and M/s. Gautam Steel Traders are required to be considered as second stage dealer. In this scenario, the appellant cannot be considered as second stage dealer and as such the credit of duty paid on the said inputs cannot be passed by him to the manufacturer. Accordingly duty to the tune of Rs. 9,82,702/- stands confirmed against the said dealer along with imposition of penalty of identical amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler. Similarly imposition of penalty under Rule 13 by the lower authorities was held to be bad in as much as the said Rule prescribes for imposition of penalty on manufacturer. In as much as the appellant was a dealer, confirmation of demand against him or imposition of penalty was neither justified nor proper. Accordingly he set aside the same. 3. When the said order of the Commissioner (Appeals) was appealed before Tribunal, ld. AR appearing for the Revenue submitted that in identical facts and circumstance, the Tribunal had earlier allowed the Revenue s appeal in the case of SDL Auto P. Ltd. As such Tribunal by following the earlier order, allowed the Revenue s appeal. 4. After hearing both the sides, I find that in the earlier orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the entire transactions and has availed the credit on the basis of invoices issued by M/s. Gautam Steel Traders who had represented themselves to be a first stage dealer. As such, there was no mala fide on the part of the respondent to consider themselves as second stage dealer and to act accordingly. I find no reasons for imposition of penalty upon them. I find that even in the case of SDL Auto P. Ltd., where the demand of wrongly availed Cenvat credit was confirmed against the manufacturer, the Tribunal set aside the penalty even on the person who availed the credit by observing that there is no evidence that they knew about the irregular passing of the credit by M/s. Gautam Steel Traders to M/s. Metal Trading Company who in turn pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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