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CX - Applicant issuing duty paying invoices without supplying goods - consignee taking CENVAT - case settled by Settlement Commission - contention that penalty not imposable in such circumstance is prima facie not sustainable: CESTAT

By TIOL News Service

MUMBAI, JULY 25, 2013: AGAINST an o-in-o passed by the CCE, Thane-II imposing a penalty of Rs.25 lakhs under Rule 26(2)(i) of the CER, 2002, the applicant is before the CESTAT with a Stay application.

The penalty is imposed on the ground that the applicants issued duty paying invoices without supplying the goods to M/s Arrow Engineers and M/s Arrow Engineers availed credit without receipt of the inputs.

Incidentally, against the proceedings initiated against M/s Arrow Engineers for recovery of the CENVAT credit allegedly fraudulently availed, the assessee M/s Arrow Engineers approached the Settlement Commission and settled the dispute by payment of appropriate duty and penalties.

So, the applicant in the present case submits that as the dispute in respect of M/s Arrow Engineers, the main noticee, is settled by the Settlement Commission, therefore, the imposition of penalty on the present applicant is not sustainable.

The Bench observed -

“5. Keeping in view the facts and circumstances, as the admitted facts are that the applicants issued invoices on the strength of which credit has been availed without receiving the inputs, therefore, we find that it is not a case for total waiver of pre-deposit of the penalty. However, taking into account the facts and circumstances of the case, the applicants are directed to deposit Rs.12,50,000/- (Rupees Twelve lakhs fifty thousand only) within a period of eight weeks and report compliance on 11.09.2013. On deposit of the aforesaid amount, the pre-deposit of the remaining penalty is waived and recovery thereof stayed during the pendency of the appeal.”

In passing : See Majority decision in S.K.Colombowala 2007-TIOL-1130-CESTAT-MUM.

(See 2013-TIOL-1122-CESTAT-MUM)


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