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TMI Blog2018 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of these goods to other manufacturers located in Chandigarh, Faridabad & Rohtak without the goods specified therein accompanying them. M/s NSP Forgings Pvt Ltd, Faridabad (M/s. NSPF) is one such firm which had received such invoices without the corresponding goods from M/s.HSAL. The aforesaid manufacturer (M/s.NSPF) is engaged in the manufacture of various types of forgings falling under Chapters 72 & 73 of the Central Excise Tariff, 1985. Investigations further revealed that the said manufacturer (M/s.NSPF) had received 20 cenvatable invoices without the receipt of 300.055MT of goods, on which credit of Rs. 11,00,798+ Cess Rs. 10,705/- was availed. The owner of the transport vehicles, whose registration numbers were appended in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation which was prerequisite of Rule 26 and that Rule 26(2) was not there in 2003. He relied on the following judgments:- (i) Baldva Textiles (P) Limited vs. CCE, Jaipur-II-2010 (253) ELT 90 (Tri.-De.) (ii) CCE, Raipur vs. Nirmal Kumar Agarwal-2013 (298) ELT 51 (Tri.Del.) (iii) Subhasri Pigments Pvt.Ltd. vs. CCE, Surat-2013 (298) ELT (Tri.-Ahmd.) 4. Ld.AR for the Revenue reiterated the findings in the order of the Commissioner (Appeals) and invited attention to the para 41.7 of the adjudication order and 22 of the show cause notice and argued that the Director of M/s. NSP Forging Pvt.Ltd. had admitted his involvement. He relied on the following judgements: (i) Rajender Sharma vs. CCE, Delhi-2005 (188) ELT 307 (Tri.-Del.) 5. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in commission of fraudulent availment of Cenvat credit. The plea of the appellant that penalty cannot be imposed under Rule 26 because the amendment in the form of Rule 26(2) was introduced in 2007. I find that the issue of imposition of penalty under Rule 26 (2) prior to 1.3.2007 was examined by Hon'ble Punjab and High Court in the case of V.K.Enterprises-2011 (266) ELT 436 (P&H) and ratio of the said judgment is applicable to the present case. In the said case, while upholding penalty on dealer for issuing invoices while not delivering the goods for the period prior to 1.3.2007, the Hon'ble High Court held as under:- "10.Inspite of non-applicability of Rule 26(2), penalty could be levied as the appellant was concerned in selling or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c evidence against the Director whereas in the present case, the Director has been fully active in running of the company and instrumental in arrangement between the suppliers and the assessee. In the case of Nirmal Kumar Agarwal (supra), the Tribunal has held that the provisions of Section 11A(2) were applicable to duty, interest and penalty and 25% penalty had been paid by the assessee before show cause notice. In the present case, it is not coming out whether the duty, interest and 25% penalty were paid before show cause notice. The ratio of the said case is therefore not applicable to the facts of this case. In the case of Subhasri Pigments Pvt.Ltd.(supra), this Tribunal has held that penalty could not be imposed on the Director. Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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