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TMI Blog2017 (5) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ot get satisfied - in the present case it is not the case of the clandestine removal of the goods but non-receipt of the inputs and fraudulent availment of the credit without physical receipt of the inputs - the penalty upon the appellant imposed under Rule 26 will not sustain - appeal allowed - decided in favor of appellant. - E/1799/10 - A/87155/17/SMB - Dated:- 26-4-2017 - Mr. Ramesh Nair, Member (Judicial) Shri. Rajeev Dinkar Waglay, Advocate for appellant Shri. S.V. Nair, Asst. Comm. (AR) for respondent ORDER Per: Ramesh Nair 1. The issue involved in the present case is whether the appellant Shri Milind Pires, Director of M/s.Surya Smelting Pvt. Ltd. is liable for penalty under Rule 26 of Central Excise Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings in the impugned order. He submits that the appellant was not only knowing that inputs was not physically received but also arranged to take the fraudulent credit by their company. Therefore, he is rightly liable for penalty under Rule 26. In his support, he placed reliance on the judgement of Sanjay Vimalbhai Deora 2014 (306) ELT 533 (Guj), which was upheld by the Hon ble Supreme Court reported as 2014 (309) ELt A-131 (SC) . 4. I have carefully considered the submissions made by both sides. I find that the offence on the part of the appellant Shri Milind Pires, who is the Director of the firm that he was actively involved in fraudulent av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical receipt of inputs. This fact itself make it clear that no goods was involved which was liable for confiscation. Therefore, the ingredients of Rule 26 does not get satisfied. As regards the judgement cited by the learned Counsel is on the identical issue wherein the penalty under Rule 26 was dropped. Therefore, the ratio of both the judgements cited by the learned Counsel are applicable in the facts of the present case. As regards, the judgement of the Gujarat High Court in the case of Sanjay Vimalbhai Deora (supra) relied upon by the learned AR, on careful dealing of the judgement, I find that penalty under Rule 26 was imposed on the Director of the company for the reason that he was involved in dealing with the goods clandestinely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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