TaxTMI 
TaxTMI 
2019 (11) TMI 1461
X X X X Extracts X X X X
X X X X Extracts X X X X
....intained by ATI of Cenvat Credit is found to be fraudulent and the credit taken is disallowed. (b) The three rebate claims filed by M/s Ashapura Textiles in respect of exports made by M/s Meena Exports for Rs. 10,38,423/- are rejected. (c) I impose a penalty of Rs. 4,27,44,288/- (Rupees Four Crores Twenty Seven lakhs Forty Four thousand Two hundred and Eighty Eight only) on Shri Jainam Madhukant Jain who was the defacto proprietor of ATI and who was responsible for taking wrong Cenvat Credit. (d) I impose a penalty of Rs. 5000/- on Shri Jainam Madhukant Jain under Rule 27 of Central Excise Rules 2002. (e) I impose a penalty of Rs. 5000/- each of the entities namely, M/s Doriwala Exports, M/s Batra Interna....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Textile Industries. Consequently, the learned adjudicating authority has denied the fraudulent credit availed by M/s Ashapura Textile Industries rejecting rebate claimed for Rs. 10,38,423/- filed by one of the merchant exporters M/s Meena Exports on the basis of documents issued by M/s Ashapura Textile Industries; imposed penalty on the Respondent unit, also imposed penalty of Rs. 5000/- each on various merchant exporters to whom notice has been issued. 5. The contention of the Revenue in their present appeal is that even though the learned Commissioner in the impugned order held that fraud has been perpetrated by M/s Ashapura Textile Industries in filing and availing of this CENVAT credit in gross abuse of Rule 12B of Central Excise Rul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule 13 of CENVAT Credit Rules of 2004 and observed as follows: "The show-cause notice proposes penalty under sub-rule (2) as above. In this case it is clearly seen that ATI has taken CENVAT credit wrongly. The utilization of the credit as per Rule 3 of CENVAT Credit Rules 2002 did not take place because no excisable goods were manufactured. The credit has been utilized for showing payment of duty on goods exported and in a few cases rebate claims have also been filed. The intention has not been to evade payment of duty" but to claim rebate of duty not paid. The penalty under this rule is to be imposed in terms of the provisions of section 11 AC of the Act. Under the section the penalty equal to duty determined under section 11A(2) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngs out the offence fully and clearly the fact that the exact rule under which offence falls is not material and the proceedings survive. So I find it proper to impose penalty on ATI under Rule 13(1) of Central Excise Rules 2002 instead of 13(2) mentioned in the show-cause notice." 7 He has also analysed other rules in imposing penalty on other noticees. 8. In para 73.4 he has observed as follows: "73. 4 - M/s Doriwala Exports, M/s Batra International, M/s Guria Textiles, M/s Himgiri Exports, M/s Karishma Overseas, M/s Maruti Exim, M/s Meena Exports, M/s Namaste Exports, M/s Prime Exports, M/s Sameer Exports, M/s Sheetal Exports, M/s Shri Vinayak Exim (Prop. Globe Agro Products Pvt.L td.), M/s Varun International, M/s Vikram ....