M.S. METALS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal has been preferred by the assessee under section 35G of the Central Excise Act, 1944 (in short, "the Act") for quashing the order dated February 20, 2013, (M.S. Metals v. C.C.E., [2014] 25 GSTR 573 (Trib. -Delhi)) (forwarding letter dated March 1, 2013), annexure Al in Excise Appeal No. 397 of 2011(SM) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short, "the Tribunal") upholding the levy of penalty upon the assessee. A few facts relevant for the decision of the controversy involved, as narrated in the appeal, may be noticed. The appellant was a registered dealer and engaged in trading of zinc ingots. It purchased goods from M/s. Kiran Metal, Faridabad who was a registered manufacturer against invoice and made payment through banking channels. The appellant sold the goods with invoices to M/s. Sonia Overseas, Panchkula, After investigation by the officers of the Central Excise Commissionerate, it was opined that the appellant neither actually received nor supplied goods to others. The appellant only issued invoices and passed on the Cenvat credit without actually delivering the goods. The Department on the basis of this opinion issued show -cause notice dated March 25, 2009, annexure A2 to the appellant. The appellant submitted reply to the notice. The adjudicating authority passed an order dated March 31, 2010, annexure A3 vide which 100 percent, penalty under rule 26(2) of the Central Excise Rules, 2002 (in short, "the Rules") was imposed. Aggrieved by the order, the appellant filed an appeal before the appellate authority. The appellate authority vide the order dated November 16, 2010, annexure A4 upheld the order passed by the adjudicating authority. Still not satisfied, the appellant filed an appeal before the Tribunal. Vide the order dated February 20, 2013 See M.S. Metals v. C.C.E., [2014] 25 GSTR 573 (Trib. -Delhi), annexure A1, the appeal was dismissed. Hence the present appeal by the appellant.

(2.) THE learned counsel for the appellant submitted that the 100 percent penalty was unjustified. It was further stated that under the rules, imposition of the 100 percent, penalty was uncalled for.

(3.) THE Tribunal vide the order dated February 20, 20131 noticed as under (page 575 of 25 GSTR):