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2015 (1) TMI 888 - AT - Central ExcisePenalty under Rule 209A - 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. - Held that:- Firstly, penalty under Rule 209A cannot be invoked to the Company. Secondly, penalty under Rule 209A cannot be imposed on a person, who has not dealt with goods, liable for confiscation. 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. In spite 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 the goods in respect of which the Cenvat credit was taken. In such a case, Rules 25(1)(d) and 26(1) are also applicable. 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. We are, thus, unable to hold that appellant was not liable to pay any penalty. Appellant diverted the imported scrap without any documents for manufacturing of excisable goods by M/s. Chamak, who clandestinely removed without payment of duty. So, the appellant company by supplying the goods without documents made easier to M/s. Chamak in manufacturing and clearing the goods clandestinely which are liable to confiscation under the Act or Rules. Hence, imposition of penalty under Rule 209A is warranted. Thus, both the issues raised by the learned Counsel are not sustainable. The learned Counsel had not contested the imposition of penalty on merit. - Decided against assessee.
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