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TMI Blog2024 (7) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.3,63,778/- under the Rule. When the demand in respect of the cenvat credit itself is not maintainable, there is no justification to affirm the penalty imposed on the appellant. In the case of Drolia Electrosteel P. Ltd. [ 2023 (11) TMI 10 - CESTAT NEW DELHI] , Learned Division Bench of this Tribunal was dealing with an identical situation, where the cenvat credit was denied and penalty was sought to be imposed on the allegations that DGCEI had investigated several manufacturers and traders including those who supplied the invoices, where the manufacturers indicated, either did not exist at all or had only supplied the documents to enable the manufacturers of the final products to take cenvat credit without actually supplying the goods. Following the principles enunciated by the Division Bench in the case of M/s. Drolia Electrosteel P.Ltd., which is binding on me and also in the given circumstances, when the department has accepted the findings as recorded by the Commissioner (Appeals) in the order dated 11.12.2019, there is no justification to uphold the imposition of penalty on the appellant. The impugned order, therefore, deserves to be set aside - The appeal is accordingly al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PL along with interest and penalty. On all other parties, penalties were imposed under Rule 26 of the Rules. In so far as the appellant herein is concerned, penalty of Rs.3,63,778/- was imposed. Being aggrieved, the appellant had preferred an appeal, which stands rejected by the impugned order. 3. I have heard Ms. J. Kainaat, learned counsel for the appellant and Shri Mahesh Bhardwaj, Authorised Representative for the respondent and have perused the records of the case. 4. Learned counsel for the appellant, at the outset, has submitted that the order-in-original dated 18.01.2019 in the present case was challenged by APSPL, which resulted in order-in-appeal dated 11.12.2019, whereby it was held that the case made out by the Department is not legally sustainable and, therefore, the cenvat credit is admissible to the appellant. The learned counsel also apprised that the order has attained finality inasmuch as the department has not challenged the said order. Learned Authorised Representative was not able to support as to why the department has not chosen to challenge the said order, which has now attained finality. 5. I have perused the order-in-appeal dated 11.12.2019 passed in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided to the appellant in light of the judgment of the Hon ble Supreme Court in the case of Andaman Timber Industries v C.C.Ex. Kolkata-Il., [2015 (324) E.LT. 641 (S.C.)] even when the same was sought by the appellant. If the goods are not supplied by the above manufacturers it cannot be construed in a way that goods were not received by the appellant. I find that it has duly received the goods from the above dealers and it has no concern about what happen in the transaction between the manufacturer and 1st stage dealer or1st stage dealer and the 2nd stage dealer. Thus the appellant has duly received the goods (Scrap) as mentioned in the impugned invoices after making payment of duty mentioned there on. 7.7 I find that it is settled proposition of law that proceeding based on statements of parties needs to be corroborated with some positive evidence to raise demand on an appellant. Thus, raising a demand in a proceeding solely on the basis of statements without any evidence corroborating such statements cannot be said to be sufficient, therefore, the demand becomes unjustifiable. I rely on the following case laws (i) Rama Jain Vs Commissioner of Cus. New Delhi 2016(333) E.LT. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with the said order insofar as the appellant is concerned, who has been saddled with penalty of Rs.3,63,778/- under the Rule. When the demand in respect of the cenvat credit itself is not maintainable, there is no justification to affirm the penalty imposed on the appellant. 7. Learned counsel for the appellant has placed on record the decisions of this Tribunal as follows:- (i) R.N. Metals Vs. CCE CGST [Final Order NO.50048 of 2024 dt.12.01.2024 in Excise Appeal NO.55254 of 2023 (SM)] (ii) M/s. Drolia Electrosteel P. Ltd. Vs. CC ST [Final Order Nos.51470-51472/2023 dated 30.10.2023 in E.Appeal NO.52612 of 2018 ors.] 8. In the case of Drolia Electrosteel P. Ltd. (supra), Learned Division Bench of this Tribunal was dealing with an identical situation, where the cenvat credit was denied and penalty was sought to be imposed on the allegations that DGCEI had investigated several manufacturers and traders including those who supplied the invoices, where the manufacturers indicated, either did not exist at all or had only supplied the documents to enable the manufacturers of the final products to take cenvat credit without actually supplying the goods. The observations of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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