TMI Blog2012 (8) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... red because neither there is any evidence that the appellant issued the invoices which according to the Department wrongly described the packing machine nor is there any evidence that the aforesaid wrong description in the invoices was given by the issuing clerk on the instruction of the appellant who is Director of the company. Further, ld. Jt. CDR has failed to point out any evidence which may show that the appellant in any manner entered into conspiracy with the main assessee M/s Dharampal Satyapal Ltd. or he has abetted the making of wrong invoices or evasion of excise duty. Thus we are of the view that appellant has a strong prima facie case which calls for waiver of the condition of pre-deposit of penalty for hearing of the appeal - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also contended that though show cause notice for imposing penalty under Rule 26 of Central Excise Rules was issued to the company, no penalty has been imposed on the company. Thus it is contended that there is a prima facie case in favour of the appellant which calls for waiving the condition of pre-deposit. 4. Ld. Shri A.K. Jain, Jt. CDR on the contrary has opposed the plea of waiver of condition of pre-deposit. He submitted that the appellant deliberately described the machine supplied by him to the main assessee M/s Dharampal Satyapal Ltd. as a simplex machine whereas it was duplex machine. In support of his contention, he has drawn our attention to the statement of the appellant recorded on 13-6-2011 wherein he has admitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly supplied the packing machine. Coming to clause (2) of Rule 26, under this clause, prima facie the case of the appellant is not covered because neither there is any evidence that the appellant issued the invoices which according to the Department wrongly described the packing machine nor is there any evidence that the aforesaid wrong description in the invoices was given by the issuing clerk on the instruction of the appellant who is Director of the company. Further, ld. Jt. CDR has failed to point out any evidence which may show that the appellant in any manner entered into conspiracy with the main assessee M/s Dharampal Satyapal Ltd. or he has abetted the making of wrong invoices or evasion of excise duty. Thus we are of the view that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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