2012 (5) TMI 533

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....appreciating the reasons advanced in ROM application, the brief facts of the case are required to be referred. The appellant is a central excise registered dealer with the department. As per the investigation conducted by the Revenue, it was found that the manufacturer M/s. Swastika Pipes Ltd., M/s. Allied Poles (India) Ltd., issued invoices of excisable goods showing the consignee as M/s. Gautam Steel Traders and the buyer as M/s. Rameshwar Das Devi Dayal (P) Ltd. M/s. Gautam Steel Traders further sold the goods to the appellant. Appellant acting as second stage dealer further issued the invoices to the manufacturer on the basis of which they availed the Cenvat credit. Revenue's contention is that the inputs were sold by the manufacture....

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....Gautam Steel Traders were issuing invoices as first stage dealer and the appellant would be considered as second stage dealer. In as much as the appellant had purchased the goods from M/s. Gautam Steel Traders who had declared these as first stage dealer in the said invoices, the respondent has rightly considered them as second stage dealer and has rightly passed on the duty credit to their buyers. Commissioner (Appeals) also observed that in any case confirmation of demand under the provisions of Rule 12 against the respondent was neither appropriate nor justified in as much as the said Rule allows recovery of Cenvat credit from the manufacturer and not from the dealer. Similarly imposition of penalty under Rule 13 by the lower authorities....

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....he manufacturer to whom the inputs stands sold and credit passed. As such I fully agree with the ld. Advocate that the Tribunal's decision in the case of SDL Auto P. Ltd. was not applicable to the facts of the present case. 5. Admittedly in the present case, the appellant is a registered dealer. In terms of Rule 12 of Central Excise Rules, demand of wrongly availed Cenvat credit can be made only from the manufacturer. As such I agree with Commissioner (Appeals)'s findings that confirmation of demand against the dealer in terms of Rule 12 is not called for. 6. As regards penalty, I find that there is a clear finding by Commissioner (Appeals) that the appellant was not a party to the entire transactions and has availed the cre....