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Judgment
R. Muralidhar, Member (J)
The Revenue has filed this appeal being aggrieved by the penalty of Rs. 24,00,332/- set aside by the Commissioner (Appeals). No one appeared on behalf of the Respondent in spite of notice. In the interest of justice, the appeal has been taken of disposal with the help of Learned AR. On going through the OIA, I find that the Commissioner has given his detailed findings at Para 14 & 16 which are reproduced below:-
“14. I find that facts and circumstances of the above case laws are squarely applicable in the instant case. The lower authority had inferred the non-supply of the said inputs by the appellant merely on the basis of statements of two transport owners pertaining to two consignments out of total nos. of 39 consignments without any corroborative evidence when transport owners were not allowed to cross examine by the appellant. I also find that the appellant had received the sale proceeds from M/s STPL in cheque and the lower authority could not adduce any evidence to show that the amount received by the appellant was further sent back to M/s STPL. The lower authority could not adduce any cogent evidence of non-supply of the said inputs by the appellant in his order. Thus, I find that the observation of the lower authority regarding issuance of fictitious invoices by the appellant without transfer of the goods to M/s STPL is not based on facts.
From the facts as discussed above vis-a-via the text of rule 26(2) of the said Rules (Supra), I find that as there is not dispute regarding supply of the said inputs by the appellant alongwith issuance of invoice for which they had received payment from M/s STPL, there was no abetment by the appellant in issuance of invoice facilitating availment of irregular CENVAT Credit. Thus, penalty of Rs.24,00,332/- imposed by the lower authority on the appellant under rule 26(2) of the said Rules is not sustainable. Accordingly, I set aside the order of the lower authority and allow the appeal filed by the appellant.
I do not find any reason to interfere with the detailed findings given by the Commissioner (Appeals). Hence the Revenue appeal is dismissed.