TMI Blog2010 (9) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of text of rule 209A of the Rules and not on the basis of rule 26 of the Rules referred hereinabove. – The question of law framed, thus, stands answered in favour of the Assessee and against the Revenue - 18 OF 2006 - - - Dated:- 14-9-2010 - V.C.DAGA , R.M.SAVANT, JJ. JUDGMENT : (Per Vijay Daga, J.) This appeal filed against the order dated 31st March, 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Regional Bench, Mumbai ("Tribunal" for short) raises the following substantial question of law: Whether in the facts and circumstances of the case and in law, the CESTAT is justified in setting aside the penalties imposed on Respondents herein holding that there is no provision under Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd forged documents by inducement or otherwise of the Superintendent and thereafter obtaining Modvat Credit by others cannot call for a penalty under the Central Excise Rules on the partnership firm and or its partner, as in this case. 4. We have considered the submission of the Ld. D.R. That confiscation under Rule 173Q(2) of plant and machinery of the Modvat availer have been arrived at which should be considered to be a liability raising and upholding the personal penalties under Rule 209A. We cannot accept the confiscation of the plant and machinery to be confiscation of Excisable goods, which would call for a penalty, since plant and machinery normally is embedded and may not even excisable and goods liable to confiscation under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y manner specified or contemplated under rule 209A. He, thus, submits that the impugned order does not require any interference at the hands of this Court. In his submission, in Jayantilal Thakkar Co. v . Union of India , 2006 (195) ELT 9 (Bom.), rule 209A was interpreted by this Court to hold that the basic requirement of rule 209A is that the person charged must have dealt with the excisable goods either by acquiring possession thereof or by transporting, or by concealing or selling or purchasing or in any other manner with the knowledge or with a reason to believe that the goods dealt 5 cexa-18.06.sxw with by him are liable for confiscation under the Act or the Rules. He, thus, submits that appeal is without any substance. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sical possession of the goods is a must for doing the activity of transporting referred in rule 209A. The ratio laid down by this Court in Jayantilal Thakkar Co. (supra) covers the issue. In the said judgment, it is held that in the given situation, if the assess is only issuing invoices wherein there is no movement of the goods, they cannot be visited with penalty under rule 209A. 8. The reliance placed by Mr.Jetly on the judgment of the Tribunal in the case of V.K.Enterprises (supra) is misplaced. The said judgment of the Tribunal revolves around interpretation of rules 12 and 14 of the Cenvat Credit Rules, 2002. The said judgment does not directly deal with rule 209A. 9. The view of ours taken herein is in consonance with the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the user of 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 or refund is made to be liable to penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. It is, thus, clear that in order to bring within its fold, the the case of a present nature. Rule 26 is enacted in March, 2007 whereas in the year 1995 when the show cause notice in question was issued, the said rule was not in the statute book. Consequently, the present case needs to be considered on the basis of text of rule 209A of the Rules and not on the basis of rule 26 of the Rules referred hereinabove. 11. In the aforesaid view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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