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2013 (2) TMI 224 - CESTAT BANGALOREPenalty under rule 15 of CCR, 2004 or Rule 26 of Central Excise Rules, 2002 - Held that:- As it is not in dispute that the appellant issued CENVATable invoices without supply of the materials specifically described in such invoices, their conduct would attract sub-rule (2) of Rule 26 of the Central Excise Rules, 2002. This provision had come into force w.e.f. 01/03/2007. The above offence was committed by the appellant in April 2007. The Department could very well have invoked Rule 26(2) to penalize the offender.However, they chose Rule 15 of the CCR, 2004. As the party, in their reply to the show-cause notice, did not claim inapplicability of Rule 15 and, in such circumstances, it did not occur to the Department that a corrigendum should be issued to correct the legal error. It appears, it was before the Commissioner(Appeals) that the party, for the first time, took the contention that Rule 15 ibid was not applicable. This contention is being reiterated before the Tribunal. Thus on the facts of this case, it cannot be gainsaid that Rule 15 is not applicable and, therefore, the penalty imposed thereunder is liable to be set aside, and it is ordered accordingly. In the result, the appeal succeeds. Mistake of fact cannot be rectified at later stage whereas a mistake of law is rectifiable subject, of course, to legal constraints. In the present case SCN was issued to the appellant for the sole purpose of penalizing them for the offence alleged therein. It alleged the facts correctly but invoked the law wrongly. There being no period of limitation for an action for penalty, the Department could have issued a corrigendum to the show-cause notice. But such corrigendum should have been issued before adjudication of the show-cause notice. The Department cannot be permitted to issue such corrigendum or to issue a fresh show-cause notice after adjudication of the case for, to allow them to do so would amount to multiplicity of proceedings.
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