2017 (5) TMI 392

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....: Ramesh Nair 1. The issue involved in the present case is whether the appellant Shri Milind Pires, Director of M/s.Surya Smelting Pvt. Ltd. is liable for penalty under Rule 26 of Central Excise Rules, 2002 for the offence that the company M/s.Surya Smelting Pvt. Ltd. has availed fraudulent Cenvat credit on the invoices without receipt of inputs physically. The adjudicating authority imposed a ....

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....ase. Penalty under Rule 26 can be imposed only when the persons have belief that the goods dealing in which is liable for confiscation. However, in the present case, there is no goods involved, which is liable to confiscation, therefore, penalty under Rule 26 cannot be imposed. He placed reliance on the following judgements: a) Sharda Synthetics Ltd. 2014 (314) ELT 411 (Tri-Mum) ....

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.... that he was actively involved in fraudulent availment of Cenvat credit by M/s.Surya Smelting Pvt. Ltd. as no input physically was received under the cover of invoice on which credit was taken. This fact is not under dispute. The penalty was imposed under Rule 26, which reads as follows: Rule 26. Penalty for certain offences. - (1) Any person who acquires possession of, or is in ....

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....t Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. 5. From the above rule it is very clear that same can be invoked only in case where a person is dealing with the goods which is liable for confiscation. In the present case, the fraudulent credit was availed without physical receipt of inputs. This fact i....