9911796707
TMI Blog2011 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (in short GEPL) for recovery of duty. On 01.10.1999, Central Excise Officers visited the factory premises of M/s. GEPL and conducted verification of raw material/duty paid inputs and found shortages in the inputs on which modvat credit has been taken and finished goods were also found short. Show-cause notice was issued to GEPL as well as to the appellants alleging that the appellants have knowingly aided and abetted GEPL for contravention inasmuch as they have prepared and issued invoices to GEPL directly from their respective offices without selling the goods to the GEPL.These dealers sent invoices separately which were not accompanied by the goods. Thus they have passed the MODVAT credit to GEPL without actually selling the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads, date-wise and invoice wise quantity issued till date and quantity amount of modvat involved in the goods covered under the particular invoice. As the vehicle Nos. were obtained from the buyer on telephone and same has been mentioned in the quadruplicate of the invoice but at the time of delivery the actual vehicle No. was entered in the invoice and date and time of delivery was also entered by the person who made the delivery of the goods from the godown of the appellants. The said facts have been explained by the appellants during the course of investigation but no consideration to these explanations was given. He further submitted that in the case of Metro Enterprises (1st appellant) out of 7 invoices, only in one invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount a penalty of Rs.1,00,000/- has been imposed which is not permissible under the law and in the case of M/s. Poly Dye-Chem Corpn. the duty involved is approximately Rs.13,000/- and penalty of Rs.1,00,000/- imposed on them are highly excessive. He finally prayed that in view of the above submissions, the impugned order is to be set aside. 4. On the other hand, Shri S.S. Katiyar, learned SDR submitted that in this case both the appellants issued invoices in the name of GEPL and it is admitted by the appellants themselves that in some of the invoices the goods were found short at the end of GEPL. Hence, it cannot be said that the only one invoice is involved. He further submitted that as the goods were found short at the prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly been imposed on the appellants. 5. Heard and considered. 6. After hearing we find that in this case the penalty under Rule 173Q (1) of Central Excise Act, 1944 has been imposed on both the appellants of Rs.1,00,000/- each. As per Annexure C-2 of the show-cause notice in the invoices issued by the appellants it was found that the duplicate copy of the invoice and quadruplicate copy of the invoice differd with date and invoice time or removal and vehicle No. As per Annexure B of the show-cause notice, the invoices issued by the appellants were not found with any discrepancy. From the show-cause notice, it is also clear that the shortage of inputs found at the premises of GEPL is not of the goods mentioned in the invoices in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. (supra) are of no help to him as in both those cases are for construing show-cause notice only. In this case, although it was pointed out to the adjudicating authority by the appellants themselves that no penalty can be levied on them for their bonafide act under such clause (bbb) of sub-rule 1 of Rule 173Q, without giving any finding, the adjudicating authority without specifying particular clause of Rule 173Q (1) has imposed the penalty. For that, the decision of the Hon'ble apex court in the case of Amrit Foods (supra) is applicable wherein the apex court has held 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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