TMI Blog2010 (7) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under Rule 25 of the Central Excise Rules, 2002 (hereinafter referred to as "the Rules") when this provision was not cited in the show cause notice. 2. In nutshell, we may point out that in the show cause notice, inter alia, allegation against the appellant herein was that the appellant had removed excisable goods in contravention of the provisions of Excise Act and Rules and particularly Rule 11 of the Central Excise Rules, sub-section (1) which reads as under: "Rule 11 . Good to be removed on invoice. - (1) No excisable goods shall be removed from a factory or a warehouse except under an invoice signed by the owner of the factory or his authorized agent and in the case of cigarettes, each such invoice shall also be countersigned by the Inspector of Central Excise or the Superintendent of Central Excise before the cigarettes are removed from the factory." 3. It was specifically alleged that the appellant had contravened the provisions of Rule 11 of the Rules as well as Rule 3, 4 and 7 of Cenvat Rules, 2002. On that basis, the appellant was called upon to show cause as to why: (a) Penalty should not be imposed upon M/s. AVI Steel Traders under Rule 13 of Cenvat C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing on the Cenvat credit in respect of the entire quantity of 132.395 MTs of goods, found short. Though I agree that in the show cause notice, rule 25 of the Rules ibid has not been specifically invoked, but the show cause clearly mentioned the allegation and charges against the appellants under Central Excise Rules, 2002. The Adjudicating Authority in para 909 of the Order-in-Original has rightly held that non-mentioning or wrong mentioning of a rule, will not vitiate the present proceedings in view of the case laws discussed therein. Besides, there are number of judgments where the various Hon'ble courts have held that non-mentioning or mere wrong mention of provisions of law in the show cause notice, does not vitiate the proceedings if the allegations and charges against the assessee (appellants) are mentioned in clear terms in the show cause notice. In this regard, the Hon'ble CESTAT in the case of Commissioner of Central Excise, Chandigarh vs. Dabur India Ltd. 2004 (178) ELT 819 (Tri. Delh) has held that "Mere wrong mention of provisions of law did not vitiate show cause notice when all allegations are contained in the show cause notice." Further the Hon'ble CESTAT in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions with the ulterior motive to pass on the Cenvat credit to the buyers without selling/delivering the excisable goods with the alleged invoices. Therefore, I do not see any reason to interfere with the Order-in-Original so far as the imposition of penalty under Rule 25 of the Rules, is concerned and to that extent, I uphold the Order-in-Original." 7. Not satisfied with the aforesaid decision, the appellant moved to Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the Tribunal"). The Tribunal affirmed the order of the Commissioner (Appeal) and giving the same reasoning and rejected the contention of the appellant in the following manner: "6. I have carefully gone through the submissions from both sides and perused the record. As a registered dealer, their obligation to account for the duty paid goods received by them and in respect of which they are entitled to pass on credit is well settled. Accounting does not merely mean accounting in RG-23D but accounting the disposal of the goods as specifically permitted under the Rules. It is strange that while the applicant's record showed such huge quantity of more than 1.3 lakshs kgs. Of inputs, yet no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal by setting aside the penalty imposed under Rule 13 of erstwhile Cenvat Credit Rules, 2002 while upholding the penalty imposed under Rule 25 of the Central Excise Rules, 2002." 8. Contention of the learned counsel for the appellant remains the same before us as contended before the authorities below. In support of her contention, learned counsel referred to the judgment of the Supreme Court in the case of Amrit Foods Vs. C.C.E., U.P [2005 (190) ELT 433 (SC)] , which was set aside on the ground that neither the show-cause notice nor the order of the Commissioner specified as to which particular clause of Rule 173-Q had been allegedly contravened by the appellant. It was observed that before imposing the penalty, it was necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of Rule 173-Q (which is pare materia of Rule 25 of Central Excise Rules, 2002. 9. There cannot be any dispute about the aforesaid legal position stated by the Supreme Court in the aforesaid judgment. However, in the present case, the appellant was specifically put on notice about the exact nature of contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
