TMI Blog2010 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... Oral)]. - This is an appeal against the order of the Commissioner No. 17/C.E./CHD-II/2002 dated 21-11-2002. The appeal was earlier decided by the Tribunal vide Final Order No. A/622/03/NB-SM dated 24-6-2003. When the matter went before the Hon'ble Supreme Court, the order of the Tribunal was set aside by the Hon'ble Supreme Court vide order dated 25-1-2010 with the direction to consider three issues afresh. The order of the Hon'ble Supreme Court reads as follows : "Having gone through the record, we are of the view that the appellants herein will not re-agitate the issue of applicability of Section 11-A of the Central Excise Act. However, the following three issues will have to be decided de novo by the Tribunal, which are as follows : (i) Whether the appellants were entitled to Modvat Credit; (ii) Whether the Authorities were justified in demanding duty and imposing penalties in the light of the statement of the appellants that the penalty against the supplier of raw material and the importer had to be set aside and that there was no challenge to that order by the Revenue; and (iii) Whether the demand of duty and imposition of penalty was justified when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted. He relies on the decision of the Hon'ble Supreme Court in the case of appellants reported in 2006 (197) E.L.T. 469 (S.C.) wherein, Hon'ble Supreme Court held that contrary and inconsistent orders arising out of same/similar show cause notices based on similar set of materials could not be allowed and accordingly set aside the order of the Tribunal. He submits that facts of the present case are identical to other 11 parties referred to in the order of the original authority. As a way of illustration, he took me through the facts of the case relating to appellants and the case of M/s. Emkay Industries Ltd. and the case of M/s. Tiruputi Chemicals Ltd. He also added that the basis of demand in respect of all the 12 parties covered by the impugned order is that M/s. Shobhit Impex, the importer issued only invoices without supply of any goods and therefore, the facts are identical. Minor variations in details do not make the cases as different. 3. Learned SDR submits that the appellants have not received the goods on which credit was taken. This is evident from the statements of representative of M/s. Shobhit Impex, representatives of two intermediaries who supplied the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 435 (Tribunal)]. The relevant portion of the order is reproduced below : "2. We have heard Shri G.S. Bhangoo, learned Counsel and Shri Mewa Singh, learned SDR. We see substance in the submission of the learned Counsel that the Rules under which penalty has been imposed upon appellant No. 1 are not attracted in this case. Rule 173Q(1)(bb) provides that "if any manufacturer, producer, registered person of a warehouse or a registered dealer takes credit of duty or money in respect of inputs or capital goods for being used in the manufacture of final products or capital goods for use in the factory of the manufacturer of final product, as the case may be wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the invoice or any other document approved under these rules evidencing the payment of excise duty or the countervailing duty, as the case may be, accompanying thereof, or takes credit of duty or money which he knows or which he has reason to believe, is not permissible under these rules, or does not utilise the inputs or capital goods in the manner provided for in these rules, or utilise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above discussion, we hold that penalty imposed upon appellant No. 1 cannot be sustained and accordingly set aside the same. Penalty on the other 2 appellants is also set aside since it has been imposed under Rule 209A while the show cause notice proposes penal action under Rule 173Q and there is a vast difference between the two Rules. In the result, we set aside the impugned order and allow all three appeals." 5.2 From the above, it is clear that the penalty on the registered dealer/ has been set aside by the Tribunal on the ground that Rule 173Q(1)(d) is not applicable or that the wrong rule has been quoted. The Tribunal did not hold that the goods were indeed supplied by M/s. Shobit Impex. The factual foundation relating to irregular passing of credit has thus not been disturbed. When the registered dealers have not supplied the goods to the appellants which stand admitted by the Director of the appellant company himself, the non-imposition of penalty on the supplier of invoices on a technical ground cannot give any relief to the appellants. The appellants are the beneficiary of irregular credit taken as they only have utilised it towards discharge of their duty liab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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