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TMI Blog2023 (3) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... est Steel & Power Pvt. Limited received invoices from the appellant, but not the goods and on such invoices, M/s Crest Steel & Power Pvt. Limited availed cenvat credit, which was inadmissible. Based on this intelligence, the officers visited the premises of M/s Crest Steel & Power Pvt. Limited, verified the records in the factory, recorded statements, investigated the matter and came to the conclusion that M/s Crest Steel & Power Pvt. Limited had not received the capital goods viz., parts of the rolling mills from the appellant on which it has availed cenvat credit of Rs.50,46,588/-. Show cause notice dated 04.05.2018 was issued to M/s Crest Steel & Power Pvt. Limited, the appellant and the transporter M/s Hindustan Roadways, in which it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be read into Rule 26. In this case, the show cause notice was issued beyond the period of five years and, therefore, the penalty is not sustainable for this reason alone. Reliance was placed on the following case laws:- * State of Punjab vs. Bhatinda District Co-op. Milk P. Union Ltd., -2007 (217) ELT 325 (SC). * CCE, Chandigarh vs. Hari Concast (P) Ltd., -2009 (242) ELT 12 (P&H). * C. Cus (Export) vs. Vineetaz Exports Pvt. Ltd.,-2019 (367) ELT 751 (Del.) ii) There was no investigation whatsoever by the Department at the appellant's end. The entire investigation was conducted at the end of M/s Crest Steel & Power Pvt. Limited, which had documents showing that the goods were received but the goods were not found physically. All th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gence, the departmental officials conducted physical verification in the factory of M/s Crest Steel & Power Pvt. Limited and indeed found that the disputed goods were not available in the factory while the invoices and documents showed that they have been received. The panchnama drawn during verification was duly signed by the officers of M/s Crest Steel & Power Pvt. Limited and a Chartered Engineer which confirms that the goods were available, at the time of verification. 6. As far as transportation of the goods is concerned, the transporter, M/s Hindustan Roadways had three entries in the ledger of M/s Crest Steel & Power Pvt. Limited on 31.03.2012 indicating freight charges. However, these freight charges show that there are no correspo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Pvt. Limited in 2012 and only supplied invoices. Consequently, can penalty be imposed under Rule 26 of the Central Excise Rules upon the appellant. 8. It is undisputed that no investigation whatsoever was conducted at the end of the appellant. The appellant was not even asked if it had supplied the goods or not. In our considered view, if documents indicated that the goods have been sent and the ledgers of M/s Crest Steel & Power Pvt. Limited indicated that it has engaged the transporter, the mere fact that at the time of verification, the goods could not be found, by itself, does not prove that the appellant did not supply the goods. The goods were not found during panchnama but the goods could have been removed by M/s Crest Steel & Pow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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