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TMI Blog2018 (7) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the inputs and no other conclusion can be drawn - the Order of the Commissioner (Appeals) regarding the setting aside of the penalties cannot be sustained. The Tribunal in the identical situation in the case of M/s. Steel Centre [2017 (9) TMI 1251 - CESTAT KOLKATA] upheld the demand of CENVAT Credit along with interest and imposition of penalty on the assessee and reduced the penalties on the co-noticees. Penalty imposed on M/s. Bindawala Cables & Conductors Limited is upheld subject to the option of payment of 25% of duty within 30 days under Section 11AC would be allowed - Penalty imposed on Shri Bhagwandas Bindawala is set aside - Penalties imposed on M/s. Bindawala Electricals Industries Ltd. and M/s. Kritika Wires Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Electricals Industries Limited and penalty of ₹ 20,18,930/- on Shri Bhagwan Das Bindawala, Director of the Assessee Company, penalty of ₹ 18,12,724/- on M/s. Kritika Wires Private Limited and penalty of ₹ 2,06,206/- on M/s. Shivam India Limited. By the impugned Order the Commissioner (Appeals) upheld the Adjudication Order only to the extent of confirmation of demand of ₹ 20,18,930/- alongwith interest and set aside the penalties on the Respondents herein. It is observed that since the assessee had already reversed the CENVAT Credit of ₹ 20,18,858/- alongwith interest amounting to ₹ 3,698/- the same is accordingly adjusted against the quantum of confirmed demand. Hence, Revenue filed these appeals again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of non receipt of goods by the Respondents. The Learned Counsel also referred to the Case Laws. 4. Heard both sides and perused the appeal records. 5. I find that the assessee is engaged in the manufacture of various grades of Alluminium Conductor. It has been alleged that they have wrongly availed CENVAT Credit on M.S. Wire and Wire Rod on the basis of the invoice issued by the two companies without actual receipt of the goods from the Suppliers concerned. It has been further alleged that there are only paper transactions. On perusal of the Adjudication Order, it is seen that Shri Bhagwan Das Bindawala, Director of the assessee in his statement dated 05.08.2015 had not seriously refuted the allegation of non-receipt of goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces without actual receipt of the goods. Apparently, fact of reversal of credit is linked with non-receipt of the inputs and no other conclusion can be drawn. Hence, the Order of the Commissioner (Appeals) regarding the setting aside of the penalties cannot be sustained. The Tribunal in the identical situation in the case of M/s. Steel Centre (Supra) upheld the demand of CENVAT Credit along with interest and imposition of penalty on the assessee and reduced the penalties on the co-noticees. The relevant portion of the said Order is reproduced below:- 4) The findings of the Adjudicating Authority has been challenged by the various appellants mainly on the ground that by claiming that the material covered by the invoices issued by BSE as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied by BSC, as well as Steel Centre, do not have the weighment slips, Sales Tax, Road permission etc. The enquiry with the Commercial Taxes Authorities of Bihar has further revealed that the relevant forms are required to be issued under Bihar Sales Tax Rules for movement of consignments. 8) On the basis of the above evidences, it is clearly established that no goods accompanied invoices by those two dealers BSC and Steel Centre. Consequently, the CENVAT Credit availed by MCU on the basis of such invoices are irregular and needs to be disallowed. 9) We find that a similar issue of fraudulent CENVAT Credit availment on the invoices issued by first stage dealers came up before the Mumbai Bench of the Tribunal in the case of Bhagwati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Steel Centre . iii) Penalty set aside on Shri Bishan Kumar Kheria. Since penalty has been imposed on M/s. Bhagwati Steel Centre, we feel that no separate penalty is required to be imposed on Shri Bimal Kr. Kheria, partner of M/s. Bhagwati Steel Centre. 7. After considering the facts and circumstances of the case and the ratio of the case laws, the imposition of penalty on Shri Bhagwan Das Bindawala, Director of the Assessee is required to be set aside. However, the Respondents namely M/s. Bindawala Electricals Industries Ltd and M/s Kritika Wires Pvt. Ltd. were involved in the offence and facilitated the assessee to avail the irregular Cenvat Credit in a fraudulent manner and therefore the imposition of penalty is justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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