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2021 (2) TMI 806 - MADRAS HIGH COURTImposition of penalty u/r 25 of CER - Second stage Dealer - Violation in respect of issuing Invoice - whether, the first respondent is correct in holding that the appellant has not contested the commission of fraud when all along the appellant is contesting and participating in the proceedings - scope of the adjudication order - HELD THAT:- Rule 25 of Central Excise Rules would clearly stand attracted to the case on hand. Rule 25 deals with 'confiscation and penalty'. Sub-Rule (1) states that subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer (a) removes any excisable goods in contravention of any of the provisions of the rules or the notifications issued under the rules or (d) contravenes any of the provisions of the rules or the notifications issued under the rules with an intent to evade payment of duty, then all such case shall be liable for confiscation and the producer or manufacturer or the registered person of the warehouse or a registered dealer, as the case may be, shall be liable to penalty. Admittedly, the assessee is a registered dealer. The Tribunal rightly referred to Rule 11(7), which covers the removal from the premises of a second stage dealer and for such removal, the second stage dealer has to issue proper invoices disclosing full and true particulars. On facts, the Tribunal approved the finding of the Adjudicating Authority and the first appellate authority that proper invoices were not issued and consequently, there is contravention of Rule 25(a) in respect of duty paid goods supplied to units not availing CENVAT credit. Further, the Tribunal rightly observed that in respect of non-duty paid goods, cleared to the manufacturers, under invoice showing duty payment, there is a clear violation of the Rules with intent to evade payment of excise duty on final products manufactured by paying such duty through fraudulent credit - the entire dispute revolves on facts, which have been brought out in detail by the Adjudicating Authority in Order-in-Original dated 21.01.2010. Appeal dismissed.
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