TMI Blog2011 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... thority without specifying particular clause of Rule 173Q (1) has imposed the penalty. As decided in Amrit Foods (2005 (10) TMI 96 - SUPREME COURT OF INDIA) neither show-cause notice nor the order of Commissioner has specified which particular clause of Rule 173Q (1) or erstwhile Central Excise Rules, 1944 has been allegedly contravened by the appellant, assessee is to put on notice as to exact nature of contravention for which under provision of Rule 173Q, penalty is imposable - order imposing penalty, is set aside and the appeals are allowed. - E/2024, 2832/03 - Mum - Final Order Nos. A/15-16/2011-WZB/C-II(EB) - Dated:- 5-1-2011 - Shri. Ashok Jindal, Shri. P.R. Chandrasekharan, JJ. Appearance Shri Mayur Shroff, Advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts supplied the goods to the GEPL under various invoices and in only one invoice of each of the appellants it was found that duplicate and quadruplicate copy of the invoice does not match as in both the date, time of removal and vehicle No. did not match. On that ground merely it was imputed that the appellants have aided and abetted the GEPL in taking MODVAT credit without receiving the goods. He submitted that the appellants are having their registered office at Thane and godown at Bhiwandi.They maintain their central excise records in their registered office and on receipt of the order, they use to prepare central excise invoice. In quadruplicate copy keeping the space for date and time for removal and vehicle No. blank and the said inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on the appellant as has been held by the Hon'ble apex court in the case of Amrit Foods vs. CCE U.P - 2005 (190) ELT 433 (S.C.) and CCE vs. Nakoda Textile Industries Ltd. - 2009 (240) ELT 199 (Bom.). He also relied on the decision of CCE vs. Max G.B. ltd. - 2008 (221) ELT 491 (P H). He further submitted that the invoice under which the discrepancy was observed during the course of investigation, no shortages of the goods cleared under these invoices were found at the premises of GEPL. He further submitted that as the goods has been cleared from the premises of the appellants and the delivery has been taken by GEPL at the premises of the appellant, thereafter the appellants are not liable for any act of GEPL after delivery of goods to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x court has held that if the allegation is clear from the body of the show-cause notice, no specific clause of contravention of provision is required to be imputed in the show-cause notice. He also relied on Dalmia Industries Ltd. vs. Collector of Central Excise, Jaipur - 1995 (79) ELT 120 (Tri.) wherein it was held non-mentioning of Section 11A of the Act in the show-cause notice, will not vitiate the proceedings and demand. He also submitted that in case of Twenty First Century Wire Rods Ltd. - 2010 (250) ELT 94 (Tri. - Mum) this Tribunal has held that the act of the person is to be considered and it was also held that in the case of Steel Tubes of India Ltd. vs. CCE Indore - 2007 (217) ELT 506 (Tri. LB) has not considered the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that for their bonafide act, no penalty under clause (bbb) to sub-rule (1) to Rule 173Q be imposed on the appellants.After taking note of that, although no specific rule was mentioned in the show-cause notice for imposing penalty on the appellants, the adjudicating authority without giving any finding under which sub-clause of the main rule wants to impose penalty, imposed penalty under Rule 173Q(1). As per Clause (bbb) of sub-Rule (1) of Rule 173Q, the penalty can be imposable when a registered dealer enters willfully any wrong or incorrect particulars in the invoice issued for excisable goods dealt by him with intent to facilitate the buyer to avail the credit of duty of excise or additional duty under Section 3 of the Excise Tariff A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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