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2023 (3) TMI 1124 - AT - Central ExciseEOU - Clandestine Removal - evasion of huge excise duty on the clearance of goods clandestinely from the EOUs - fraudulent advance license could not have been issued - malafide intent or not - penalty under Rule 26 of CER - HELD THAT:- The appellant have admittedly issued false performance certificate to fraudulent parties who, on the basis of the said certificates obtained the advance license and such advance licenses were used for evasion of huge excise duty on the clearance of goods clandestinely from the EOUs. Without the performance certificate, the fraudulent advance license could not have been issued and huge revenue loss could not have occurred to the government exchequer. Therefore, for the entire offence the appellant’s role is key role. The appellant has also not verified any credentials of their so-called clients. It is also a fact on record that the appellant have categorically admitted in his statement that if he would have known that so huge revenue involvement is there, he could have charged heavy amount of fees as compared to Rs.1500 per certificate. With this statement, the mala fide of the appellant is clearly established. This tribunal dealing with the similar fact maintained the penalty imposed on the Chartered Accountant for issue of Solvency/Export performance certificate in the case of MAHESH P. PATEL SUDESH D. NANAWARE VERSUS COMMISSIONER OF CUSTOMS (EP) , MUMBAI AND COMMISSIONER OF CUSTOMS (EP) , MUMBAI VERSUS SPECTRUM FABRICS [2018 (6) TMI 17 - CESTAT MUMBAI] where it was held that it can be seen that the appellant Shri Sudesh Nanaware, being a consultant, has admitted the pre-decided plan for committing the fraud. Therefore, he was rightly imposed the penalty under Section 112(a). The appellant has been rightly imposed with a penalty under Rule 26 of Central Excise Rules - there are no infirmity in the impugned order to the extent of penalty of Rs. 5 lacs was imposed upon appellant under Rule 26 - the penalty is upheld - appeal dismissed.
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