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2013 (1) TMI 201 - CESTAT AHMEDABADRebate claim - Central Excise duty without physical movement of goods - Held that:- As the respondents admit that they had simply debited the cenvat credit in their books and without supply of any goods issued invoices and facilitated M/s. Ruby Silk Mills to show that they have received fabrics and make false claims for rebate. As decided in M/s Vee Kay Enterprises, Faridabad Versus Commissioner of Central Excise [2011 (3) TMI 133 - PUNJAB AND HARYANA HIGH COURT] the person who purports to sell goods cannot say that he was not a person concerned with the selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoices without delivery of goods with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. Thus, unable to hold that appellant was not liable to pay any penalty - appeal filed by the Revenue has to be allowed. Penalty imposed equal to the cenvat credit availed on the basis of fraudulent invoices issued by the appellant is somewhat excessive. In view of the fact that penalty has been imposed on the others who have claimed rebate and cenvat credit also has been denied and rebate sanctioned has been demanded and also in view of the observations of the Hon'ble High Court that the penalty under Rule 26 does not have minimum prescribed amount, the quantum of penalty has to be commensurate with the gravity of the offence. Thus penalty is required to be reduced to Rs.Two lakhs.
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