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TMI Blog2017 (11) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity can be given to the appellant for cross examination of the witnesses and the documents may also be provided to the appellant for making their final defence - matter on remand. Penalties u/r 26 - Held that: - as per the act/role prescribed under Rule 26, it is not possible to carry out such acts/play role by artificial person as company therefore penalty under Rule 26 can only be imposed on the natural person and not on the company - As regard the personal penalties imposed on the other individual persons under Rule 26, we find that there is no case of handling of offended goods as the entire case is of alleged fraudulent availment of Cenvat credit by M/s. Bhavshakti Steelmines Pvt Ltd, therefore all persons have not dealt with the goods which is liable for confiscation - The period involved in the present case is April, 2003 to March, 2004 during such period there was no pari material provision of sub rule (2) of Rule 26 therefore penalty under Rule 26 was not imposable for the role of the person involved in the present case, accordingly penalties u/r 26 were set aside and the appeals of the other appellants are allowed. Appeal allowed in part and part matter on rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rap. The allegation made by the investigating agency is that appellant were availing cenvat credit on the invoice in respect of above scrap but scrap covered under the said invoice were not received. However, they were receiving scavanger/bazar scrap, therefore on the invoice on which cenvat credit was availed the goods therein were not received by the appellant. In the investigation it was found that there was shortage of 3229.605 MT. It was contended in the show cause notices as well as in the adjudication order, this shortages is due to non receipt of scrap under the invoices of CRGO scrap, HR trimming scrap and shipping breaking scrap. The shortage corroborated charge of the department that they were not receiving the scrap mentioned in the invoice. They are using bazar scrap as and when required. The detailed investigation was carried out by the investigation agency with various persons who issued the invoices such as manufacturers, registered dealers, investigation was also carried with the transporter and RTO office wherein it was revealed that vehicle mentioned in the invoices are not goods carrying vehicle but either auto rickshaw, scooter, motor cycle. This shows that inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for disposal. Now from the appeal of M/s. Bhavshakti Steelmines Pvt Ltd preliminary submission is that they were not supplied all the relied upon/non relied upon documents. The cross examination of various witnesses whose statements were relied upon was not conducted therefore the principle of natural justice were not followed while adjudicating the show cause notice, therefore impugned order is not sustainable on the ground of principle of natural justice. 3. On behalf of the other appellants Ld. Counsels/C.As. submit that it is a case of wrong availement of credit by the main appellant M/s. Bhavshakti Steelmines Pvt Ltd, therefore the penalties under Rule 26 cannot be imposed. They submit that invoice issued was in respect of goods mentioned in the said invoice, therefore as regard the issuance of invoices there is no error therefore penalty under Rule 26 cannot be imposed. In the present case there is no proposal of confiscation of the goods, Rule 26 penalty cannot be imposed. In the present case, there is no proposal of confiscation of the goods, Rule 26 penalty can be imposed only if there is case of confiscation of the goods. It was submitted that period involved in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there are ample of evidence on which demand was confirmed therefore submission of the appellant that principle of natural justice not followed will not make any difference in the outcome of the case. He placed reliance on the following judgments: (a) Bhagwati Steel Cast Ltd Vs. CCE, Nashik[CESTAT WZB Order No. A/1950-1967/15/EB dated 11-3-2015] (b) Sujana Metal Products Ltd Vs. CCE, Thane-I[CESTAT WZB Order No. A/204-215/14/EB/ C-II dated 8-1-2014] (c) Harisons Steel Pvt Ltd Vs. Union of India Ors[2017-TIOL-803-HC-MUM-CX] (d) Ajay Kumar G. Baheti Vs. CCE, Cus., Nashik[2017(348)ELT 115(Tri. Mumbai)] (e) Nashik Strips Pvt Ltd Vs. CCE, Nashik[2010(256)ELT 307(Tri. Mumbai)] 5. We have carefully considered the submissions made by both sides and perused the records. 6. We find that though the adjudicating authority has tried his best to comply with principle of natural justice and granted number of opportunity of personal hearing and also allowed the cross examination but the fact remains that appellant have not received all the relied upon documents, the cross examination of the witnesses could not be conducted therefore though there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents: (i) Steel Tubes of India Ltd Vs. Commissioner of C. Ex. Indore[2007(217)ELT 506(Tri. LB)] (j) Shaper Chemicals Ltd Vs. Commissioner of Central excise, Mumbai-VII(2004(173)ELT 327(Tri. Mum)] approved by Hon'ble Bombay High Court reported as [2009(234)ELT A122(Bom)] As regard the personal penalties imposed on the other individual persons under Rule 26, we find that there is no case of handling of offended goods as the entire case is of alleged fraudulent availment of Cenvat credit by M/s. Bhavshakti Steelmines Pvt Ltd, therefore all persons have not dealt with the goods which is liable for confiscation, secondly, if at all penalty under Rule 26 can be imposed on such person i.e. only under sub rule (2) of Rule 26 which came into effect on 1/3/2007. The period involved in the present case is April, 2003 to March, 2004 during such period there was no pari material provision of sub rule (2) of Rule 26 therefore penalty under Rule 26 was not imposable for the role of the person involved in the present case, accordingly penalties under Rule 26 were set aside and the appeals of the other appellants are allowed. In result: (a) Appeal No E/568/08 of M/s. Bha ..... 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