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2016 (12) TMI 82 - AT - Central ExciseImposition of penalty under Rule 209A of Central Excise Rules 1944 - clandestine removal of goods - forged invoices - appellant is involved in issuance of fake gate passes and on the basis of which the fraudulent modvat credit was passed on, whether on this basis penalty u/r 209A is attracted or not? - Held that: - From the plain reading of the Rule 209, the person can be liable for penalty only when he acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these Rues. In the facts of the present case, fake gate passes were issued but no excisable goods were supplied, therefore the dealing of the goods, in particular excisable goods is not involved. The appellant has not involved in the act as mentioned under Rule 209A such as transporting, removing, depositing, keeping, concealing, etc. of any excisable goods which are liable for confiscation. Since no goods were involved the question of dealing with the goods and the confiscation thereof is not involved. Under Rule 209A penalty cannot be imposed on the appellant for the offence committed. We observe that in the new Central Excise Rules 2002, Rule 26 is pari materia to Rule 209A, when it was realized by the Government that offence of the similar nature of the present case are also occurring for extending the fraudulent benefit by way of fake documents, the legislators have conciously inserted Sub-rule (2) in Rule 26 to bring the present offence under the ambit of penal provision. Since the provision similar to Sub-Rule (2) of Rule 26 was neither existing in Rule 26(1) nor in Rule 209A of Central Excise Rules 1944, the provision of Sub-Rule (2) cannot be made applicable prior to 1.3.2007 when Sub-Rule (2) was inserted - the penalty imposed under Rule 209A on the appellant is not sustainable, therefore the penalty is set aside - appeal allowed - decided in favor of appellant-assessee.
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