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2013 (8) TMI 129 - AT - Central ExciseRule 11 of the central Excise Rules read with Rule 25 of the Central Excise Rules,2002 - Two of the appellants, are second stage dealers as defined in rule 2 (s) of Cenvat Credit Rules, 2004 for selling of excisable products and issuing invoices showing excise duty payment on the goods as per provisions of Rule 11 (7) of Central Excise Rules, 2002 - Two second stage dealers had procured non-duty paid MS scrap from open market and supplied it under invoices which showed payment of duty on materials which were used by buyers(manufacturers) who were not interested in taking Cenvat credit – Held that:- Non-duty paid goods cleared to the manufacturers under invoice showing duty payment there is a clear violation of rules with intent to evade payment of excise duty on final products manufactured (by paying such duty through fraudulent credit) - This duty liability is not on the second stage dealer. But, still in my view, the situation will be covered by Rule 25 (d) and also in respect of non-duty paid goods supplied to the manufacturer under invoice showing duty payment. So, both the goods were liable to confiscation. This explains the slight contradiction between the orders of the two lower authorities. But this is not critical to the adverse consequence that visits the appellants due to his misdeeds. The reason that the goods were not available to confiscation should not be a reason to avoid penalty - Hon’ble High Court of Punjab and Haryana in the case V. K. Enterprises Vs. CCE [ 2011 (7) TMI 970 - CESTAT, DELHI] has held that penalties can be imposed in such cases under Rule 25 of the rules as it existed at that time. Since there is decision of a High Court in line with argument in present case, it is not considered necessary to follow any decision of the Tribunal to the contrary – Appeals filed by dealers rejected – Decided against the Assessee.
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