9911796707
TMI Blog2011 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... not be imposed under Rule 27 of the Central Excise Rules 2002. By an order dated 29 May 2009 the Assistant Commissioner of Central Excise imposed a penalty of Rs. 4,05,93,445/under Rule 26(2) of the Central Excise Rules. The Appellant has filed an appeal before the Commissioner (Appeals) who, by an order dated 24 May 2010 upheld the order of the Assistant Commissioner. The Appellant filed an appeal before the CESTAT and one of the contentions in support of the application for stay was that Rule 26(2) had come into effect from 1 March 2007. The violation related to a prior period, viz. between March and July 2004. 2. The Tribunal by its impugned order has directed the Appellant to deposit an amount of Rs.50 lacs, waiving the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 26(2). Rule 26(2), it is urged, came into force on 1 March 2007 and would have no application to the period to which the notice to show cause relates viz. March to July 2004. The Tribunal while accepting the submission proceeded to impose a penalty under Rule 13 of the Cenvat Credit Rules 2002. Learned counsel relied upon judgments of the Supreme Court in Commissioner of Central Excise, Coimbatore v. Elgi Equipments Limited 2001 (128) E.L.T. 52 (S.C.) and Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. 2007 (215) E.L.T. 489 (S.C.). In the second of the aforesaid decisions, the Supreme Court held that it is well settled that the show cause notice forms a foundation in the matter of levy and recovery of duty, penalty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. 5. On the other, Counsel appearing on behalf of the Respondent supported the order passed by the Tribunal. 6. In our view, a reading of the order of the Tribunal would indicate that while recording the submissions of Counsel appearing on behalf of the Appellant, the Tribunal adverted to the submission that the Appellant had not issued any invoices. As a matter of fact, the departmental representative had sought to rely upon certain other circumstances to support his contention that even though the Appellant has denied having issued any invoice to any third party, he could not be absolved of liability. The Tribunal proceeded on the erroneous basis in paragraph 5 of its order that the Appellant had not disputed having i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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