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TMI Blog2009 (4) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... e, but the amount was subsequently received back from M/s. R.M. Enterprises in cash – demand with penalty upheld - E/2018, 2070, 2040 and 2039/2005 - A/745-748/2009-WZB/AHD - Dated:- 8-4-2009 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Shri P.M. Dave, Advocate, for the Appellant. Shri R.S. Srova, JDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)].- All the four appeals are being disposed off by a common order as they arise out of a common order passed by the Commissioner (Appeals). We have heard Shri P.M. Dave, learned advocate appearing on behalf of the appellants and Shri R.S. Srova, learned JDR appearing on behalf of the Revenue. 2. M/s. Piyush Engineering Works is engaged the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as to avail the Cenvat credit. Job work challans were being prepared to show consumption of such non-receipted Pig Iron/Skulls. Further, final goods were shown to have been manufactured out of the castings received from the job worker on paper only and the same were shown to have been sold to M/s. S.D. Enterprises, who was engaged in the export of the same. 3. During the course of further investigation, statements of Shri D.G. Patel, were further recorded, which were inculpatory and reiterating the same stand and he further clarified the modus operandi adopted by M/s. Piyush Engg., to avail the unauthorized Modvat credit. Statement of Shri K.D. Sidpara, authorized signatory of M/s. Piyush Engg. was also recorded, deposing that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the authorities below, confirming demand and imposing penalties. 6. The first issue to be decided in the present appeal is as to whether the Modvat credit availed by M/s. Piyush Engineering, on the basis of invoices issued by registered dealer M/s. R.M. Enterprises is correct or not. The entire case originated with the visit of the officers in the appellant's factory on 24-4-03. Apparently, nothing was found wrong in the said appellant's factory. However, to verify the genuineness of the job workers, premises at the address given in the job work challan, were visited by the officers and it was found that the same was residential area. The said fact that the job worker's factory was a residential area, does not stand disputed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the statement of Shri Patel. The said statement of Shri Patel stand fully corroborated by the statement of Shri Kantilal J. Sidpara, authorized signatory of the said appellant. In his statement on 24-4-03, he admitted that there was no job worker and the invoices were being raised by them with a view to adjust the non-receipted goods. The nonexistence of job workers is also another factor which corroborates the Revenue's stand. The modus operandi adopted by the said appellant were revealed by him in his various statements. The payment made to M/s. R.M. Enterprises, who either himself issued the invoices as also arranged from M/s. Usha Ispat Ltd. and M/s. Hem Sales, were made by them through cheque, but the amount was subsequently received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri A.R. Patel, Partner of M/s. R.M. Enterprises, we find that the allegations against him are issuance of modvatable invoices without sale of the input. Larger Bench decision of the Tribunal in case of M/s. Steel Tubes as reported in 2007 (217) E.L.T. 506 (Tri.-LB), has held that such findings would not attract penal provisions of Rule 26 of Central Excise Rules, 2002 (which are pari materia to erstwhile Rule 209A). As such, we, by following the above judgment of Larger Bench, we set aside the penalty of Rs. 1. lakh imposed on Shri A.R. Patel, Partner of M/s. R.M. Enterprises. As regards penalty of Rs. 1 lakh imposed upon M/s. S.D. Enterprises, Mumbai, we find that the scope of present proceedings is not non-receipt of final product by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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