M.S. METALS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellant are a registered dealer dealing in zinc ingots. On the basis of an invoice issued by them to M/s. Sonia Overseas Pvt. Ltd., M/s. Sonia Overseas took Cenvat credit of Rs. 1,04,083. Subsequent investigation revealed that the appellant as a registered dealer had issued only a bogus invoices to M/s. Sonia Overseas without sale of any goods. In view of this, after issue of show -cause notice, the jurisdictional Assistant Commissioner vide the order -in -original dated March 31, 2010 while confirming the Cenvat credit demand against M/s. Sonia Overseas, also imposed penalty of Rs. 1,04,083 on the appellant under rule 26 of the Cenvat Credit Rules. On appeal to the Commissioner (Appeals), this order of the Assistant Commissioner with regard to the appellant was upheld vide the order -in -appeal dated November 16, 2010 against which this appeal has been filed. Heard both sides.

(2.) SHRI Abhishek Jaju, advocate, the learned counsel for the appellant, pleaded that the show -cause notice issued to the appellant sought imposition of penalty on the appellant under rule 26(2) for issue of bogus invoice without supplying any material, that the alleged transaction had taken place in March, 2004 while rule 26 had been amended by inserting sub -rule (2) with effect from March 1, 2007 that the Assistant Commissioner as well as the Commissioner (Appeals) have upheld the penalty on the appellant under rule 26(2) only, while this rule was not existence in March, 2004 and, therefore, no penalty could be imposed on the appellant for issue of bogus invoice without supplying any material, as the sub -rule (2) which specifically provides for penalty for such offences was introduced only with effect from March 1, 2007, that in this regard he relies upon the judgment of the Hon'ble Punjab and Haryana High Court in the case of Vee Kay Enterprises v. CCE : [2013] 21 GSTR 533 (P&H); [2011] 266 ELT 436 (P&H) and also the apex court's judgment in the case of CCE v. Elgi Equipments Ltd. reported in : [2001] 128 ELT 52 (SC). He, therefore, pleaded that the impugned order upheld the penalty on the appellant is not sustainable.

(3.) I have considered the submissions from both sides and perused the records.