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2015 (6) TMI 78 - AT - Central ExciseWaiver of pre deposit - Imposition of penalty - Issue of bogus invoices - Evasion of duty - penalty under Rule 26 - Whether penalty can be imposed on companies or firms under Rule 26 - Difference of opinion - Majority order - Held that:- W.e.f. 01/3/07 Rule 26 of Central Excise Rules, 2002 was amended and the main Rule 26 as mentioned become sub-Rule (1) and a sub-Rule (2) was added which provided that any person who issues any excise invoice without delivery of goods specified, therein or abets making such invoices or any issues other document or abets in making such documents on the basis of which the user of the said invoice or document is likely to take or has taken any ineligible benefit under the Act or the Rules made thereunder, like claiming of Cenvat credit under Cenvat Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or ₹ 5,000/- whichever is greater . Penalty under Rule 26, whether under sub-Rule (1) of Rule 26 or under sub-Rule (2) of Rule 26 can be imposed on a juristic person also i.e. on a company or a firm. Moreover, if a private limited company or public limited company or a partnership or a proprietorship firm as a registered dealer issues bogus invoices without supply of any material to enable another person avail the Cenvat credit, it would not be correct to say that in such cases the person who had issued the bogus invoices would not be liable for penalty under Rule 26 (2). - this is not the case where the requirement of pre-deposit of penalty for compliance with the provisions of Section 35F should be totally waived - Partial stay granted.
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