TMI Blog2011 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded and which finding has not been challenged. Quantum of penalty - The penalty prescribed is admittedly not the minimum. Its quantum will thus be in discretion to be exercised having regard to mitigating or aggravating circumstances. - Since in the present case the Tribunal has not considered the issue of quantum of penalty, the matter may require fresh consideration of the Tribunal to determine the quantum of penalty which ought to be levied on the appellant. - Central Excise Appeal Nos. 7 and 105 of 2010 - - - Dated:- 17-3-2011 - MR.JUSTICE ADARSH KUMAR GOEL, MR.JUSTICE AJAY KUMAR MITTAL, JJ. Mr. Jagmohan Bansal, Advocate for the appellant. Mr. Gurpreet Singh, Senior Standing counsel for the respondent. ADARSH KUMAR GOEL, J. 1. This order will dispose of CEAs No.7 and 105 of 2010 as it is stated by learned counsel for the parties that questions of law involved in both the appeals are identical. 2. CEA No.7 of 2010 has been preferred by the assessee under Section 35G of the Central Excise Act, 1944 against order dated 4.9.2009 passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi (for short the Tribunal ) claiming following s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be applied retrospectively. In respect of persons whose activities are clearly covered by the provisions of Rule 25, the penalties are imposable under the said Section. As regards penalty imposed on the persons under Rule 26, as their role is covered under unamended Rule 26 ( i.e. 26(1) in the present form), even before the amendment, the penalties on these persons are sustainable. Therefore, it is not a case of retrospective application of penal provisions. 16. The reliance is being placed on the decision of the Larger Bench in the case of Steel Tubes of India Ltd. reported in 2007 (217) ELT 506 (Tri-LB). In the said decision it has been held that the assessee was only issuing invoices and there was no movement of goods, and therefore, they cannot be visited with penalty under Rule 209A. The said decision of the Tribunal relies on the judgment of the Hon'ble High Court of Bombay in the case of Jayanthilalk Thakker and Company reported at 2006(195) ELT (Bom) in which it was held that the Chartered Accountant and the law firm could not be held to have dealt with the goods in any other manner attracting the provisions of Rule 209A of the Central Excise Rules. From the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roborated the submissions of these parties. 4. We have heard learned counsel for the parties. 5. Learned counsel for the appellant submitted that since the period during which the appellant issued invoices is prior to 1.3.2007, the rule under which penalty was created for the first time i.e. Rule 26(2) having come into force on 1.3.2007, the same could not be invoked to levy penalty against the appellant. Reliance has been placed on the following orders:- (i) CEA No.56 of 2009 Commissioner of Central Excise Commissionerate, Chandigarh Vs. Sh. Ashish Gupta decided on 18.2.2010; (ii) Commissioner of Ex., Jalandhar Vs. Satish Metal Co. 2007(210) E.L.T. 341 (P H); and (iii) CEA No.80 of 2006 Commissioner, Central Excise Commissionerate, Jalandhar Vs. M/s Ruby Impex, 1049, Industrial Area, Jalandhar decided on 10.2.2010. 6. Alternatively , it was submitted even if the appellant was liable to pay duty it did not stand on the same footing as person who wrongly availed of the credit and doctrine of proportionality was required to be applied by taking into account the extent of culpability. In this regard reliance has been placed on order of this Court dated 5.7.2010 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT Credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. 7. Learned counsel for the revenue supported the impugned order. 8. Question for consideration is whether penalty could be levied on the person who did not actually deliver the goods and merely issued a fake invoice which enabled wrong availing of cenvat credit and the extent of penalty which could be levied. 9. As regards applicability of provisions introduced on 1.3.2007 to alleged acts committed prior to the said date, the matter is covered by orders of this Court referred to above which are not shown to be distinguishable. Accordingly, we hold that the amended provisions will not apply to the acts committed prior thereto. 10. Inspite of non applicability of rule 26(2), penalty could be levied as the appellant was concerned in selling or dealing with the goods which were liable to confiscation inasmuch as the appellant claimed to have sold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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