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TMI Blog2014 (6) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to be involved in the issue of bogus CENVAT invoices in other names also. It appears that the said Chandubhai Patel has been instrumental in the mischief by using the name of the appellant without his knowledge. Moreover, it is found that the adjudicating authority has imposed penalty without any categorical finding against the appellant. Rather the penalty is imposed on the basis of assumption and presumption which have no legs to stand - Decided in favour of appellant. - E/1519/2010 - Final Order No. A/376/2014-WZB/C-II(EB) - Dated:- 20-5-2014 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri V N Ansurkar, Adv. For the Respondent : Shri Navneet, Addl. Commissioner (AR) PER : Anil Choudhary Heard the parties. 2. The brief facts lying in a narrow compass are that the appellant Shri Kashinath Das, obtained registration as Central Excise dealer (First Stage) in the firm name M/s Shiv Trading Company in January, 2004. Thereafter, he filed Nil return for the quarter ending March, 2004 and June, 2004 and upto 20.7.2004. Thereafter, he surrendered the Registration on 21.7.2004, that no business has been transacted during the registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bber stamps found in the course of search in the name of J.P. Textiles , it was stated that it was a proposed firm, which was never opened. (viii) As regards M/s Sofina Fashion, all the activities etc. were looked after by Shri Chandubhai Patel and his associate namely, Shri Pandey and Mukesh, who all belong to Surat. (ix) In his further statement recorded on 17.1.2006, the following statements were made:- On being shown invoices issued by M/s Shiv Trading Company in favour of M/s Accelerated Synthetics Pvt. Ltd., Bhiwandi, being 24 in number, it was categorically stated that the said invoices were not issued by him or by his firm to the best of his knowledge. It was further categorically stated that the signature appearing on the 24 invoices purportedly issued in favour of M/s Accelerated Synthetics Pvt. Ltd. are not the signature of Shri Kashinath Das and the same appear to be forged. It was further stated that Shri Kashinath Das does not know any person by the name of Sudhir Bhimrajka or Tulsidas Goyal or Leo Fernando. 2.3 The statement of Shri Tulsidas Goyal, Director of Accelerated Synthetics PVt. Ltd. was recorded under Section 14 of the Act, wherein it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shiv Trading Company ..Proprietor affixed on the invoices is same as that bearing on the Central Excise Returns filed by the appellant at Range Office. It cannot be a mere coincidence, more so because the appellant had not employed any person for looking after day-to-day work, who might have done mischief and forgery etc. Further, when the invoice of Shiv Trading Company with bogus address as per the registration certificate as well as rubber stamp were found in the custody of the appellant in the course of search, no one else can issue the invoice in question as because who else can be benefitted by the issue of bogus invoices in question. (iv) The appellant is silent about the invoice book brought into use and rubber stamp affixed on the invoices. (v) It cannot be a mere coincidence that all these invoices were issued for availing bogus CENVAT Credit and issued during the same period for which the appellant was holding Central Excise Registration for the period of about six months. (vi) As per the statement recorded of Shri Tulsidas Goyal, Director of M/s Accelerated Synthetics Pvt. Ltd. (one of the buyers) who has stated that the purchase were made throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument or abets in making such document, on the basis of which the user of said invoice or documents is likely to take or has taken any ineligible benefit under the Act or the Rules made thereunder like claiming of CENVAT Credit or refund, shall be liable to penalty not exceeding the amount of such benefit of five thousand rupees, whichever is greater. 4. Being aggrieved, the appellant had moved in appeal before the Commissioner (Appeals), who vide his order dated 24.5.2010 has been pleased to dismiss the appeal agreeing with the findings of the adjudicating authority. 5. Being aggrieved, the appellant has filed the present appeal and has raised the following grounds before this Tribunal:- A) At the outset, the appellant submits that the Ld. Commissioner passed the impugned order without application of mind and seriously erred in upholding the Order of the lower authority imposing penalty under Rule 26(2) of the Central Excise Rules, 2002 which is against the settled law and therefore the impugned order is bad in law and deserves to be set aside on this ground alone. B) While passing the impugned order, the Ld. Commissioner, erred in holding that the Appellant k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d NIL returns with the Department for the quarter ending March, 2004 and up to 20.07.2004. This itself shows that the Appellant had no fraudulent intent to defraud the Revenue. Moreover, the registration was surrender by him on 21.07.2004. This fact, has not been correctly appreciated by the Ld. Commissioner while passing the impugned order and holding that the appellant is liable for penalty. H) The Appellant submits that the decisions relied upon by the Ld. Commissioner are not in the context of imposition of penalty under Rule 26(2) of Central Excise Rules, 2002 and therefore are not applicable in the instant case. I) While passing the impugned order the Ld. Commissioner failed to appreciate the decision of Hon'ble Tribunal in the case of M/s Ispat Industries Ltd. Vs. Commissioner of Central Excise, Aurangabad reported in 2008 (226) ELT 218 (Tri. Mumbai) wherein it is clearly held that provisions of Rule 26(2) of Central Excise Rules, 2002 are not applicable to matter prior to 01.03.2007. The Ld. Commissioner has also not recorded appropriate findings to discard the said decision and invoking penalty with retrospective effect. 6. The learned Addl. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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