TMI Blog2013 (8) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... o the manufacturer under invoice showing duty payment. So, both the goods were liable to confiscation. This explains the slight contradiction between the orders of the two lower authorities. But this is not critical to the adverse consequence that visits the appellants due to his misdeeds. The reason that the goods were not available to confiscation should not be a reason to avoid penalty - Hon’ble High Court of Punjab and Haryana in the case V. K. Enterprises Vs. CCE [ 2011 (7) TMI 970 - CESTAT, DELHI] has held that penalties can be imposed in such cases under Rule 25 of the rules as it existed at that time. Since there is decision of a High Court in line with argument in present case, it is not considered necessary to follow any decision of the Tribunal to the contrary – Appeals filed by dealers rejected – Decided against the Assessee. - Appeal Nos.E/690/10, E/781/10, E/4/2011 - - - Dated:- 3-6-2013 - Shri Mathew John, J. For the Appellant: Shri M.N. Bharathi, Advocate and Shri M. Saravanan, Advocate For the Respondent: Shri Parmod Kumar, JC (AR) JUDGEMENT Three appeals are being decided in this proceeding. M/s Amman Steels and M/s Alagappa and Co., two of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere supplied to the manufacturer, AAIL, was actually lower than the price at which the duty paid goods were procured by them. (ii) In the statement dated 18-02-08 recorded from Shri. T,Kannan, authorized Signatory of M/s Alagappa and Co., he stated that they actually supplied non-duty paid scrap from the bazar against the nine impugned invoicesissued by them to AAIL, details of which were shown to him during taking of statement, and that duty payment shown in the invoicesissued were based on duty paid on other materials supplied by manufacturers which materials were sold to people who were not taking any Cenvat credit; (iii) In the statement dated 03-02-2009 given by Shri. Gangaibalan, Proprietor of M/s Amman, he also admitted that the goods supplied by the nine impugned invoices issued by them AAIL, details of which were shown to him during taking of statement, were actually scrap obtained from bazar but duty payment shown in the invoices related to other goods sold to other person who were not interested in taking invoices. 5. During hearing of the appeal, the advocate for the dealers did not dispute the factual evidences appearing against them. His only contention was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prices for the goods were indicated less than the price at which the dealer procured the goods would have indicated to AAPL that it was not the same goods as covered by the documents. The description of the goods in the document were also different from the descriptions of the actual goods received and accounted by them. These facts clearly demonstrate that they were aware of the fraud. Revenue is not challenging receipt of goods and payment by cheque. But the issue is goods received were different from the goods covered by any manufacturer against any invoice after payment of applicable excise duty. Thus he argues that there is a conscious effort on the part of this party to take fraudulent credit and therefore extended period of time is properly invoked. 12. I have considered submissions on both sides. From the fact that the dealers who issued the invoices are shying away from contesting the factum of fraud, it is very obvious that the dealers supplied non-duty paid goods against documents showing duty payment. The further facts as presented by Ld. A. R. would show that the manufacturer was party to the fraud. So, I have no hesitation in confirming the demand against AAPL along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed by the Assistant Commissioner of Central Excise, or the Deputy Commissioner of Central Excise, as the case may be, in the special facts and circumstances of each case. (5) The owner or working partner of the Managing Director or the Company Secretary or any person duly authorised for this purpose shall authenticate each foil of the invoice book, before being brought into use.?????? (6) Before making use of the invoice book, the serial numbers of the same shall be intimated to the Superintendent of Central Excise having jurisdiction. (7) The provisions of this rule shall apply mutatis mutandis to goods supplied by a first stage dealer or a second stage dealer : Explanation. For the purposes of this rule, first stage dealer and second stage dealer shall have the meanings assigned to them in CENVAT Credit Rules, 2002. (relevant portions are highlighted) 15. It is trait to argue that Rule 9 envisages declaration of correct particulars and not any fraudulent particulars will not meet the requirement of Rule 9. The Rule is applicable to the dealers with necessary changes as applicable as per sub-clause (7). So to argue that only manufacturer has to match goods with invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second stage dealer. But, still in my view, the situation will be covered by Rule 25 (d) and also in respect of non-duty paid goods supplied to the manufacturer under invoice showing duty payment. So, both the goods were liable to confiscation. This explains the slight contradiction between the orders of the two lower authorities. But this is not critical to the adverse consequence that visits the appellants due to his misdeeds. The reason that the goods were not available to confiscation should not be a reason to avoid penalty. I find that the Hon ble High Court of Punjab and Haryana has held that penalties can be imposed in such cases under Rule 25 of the rules as it existed at that time. Since there is decision of a High Court in line with my argument I do not consider it necessary to follow any decision of the Tribunal to the contrary. A decision to the contrary will not further objective of the provisions of the Act and the Rules and will help only in putting a torpedo on the hull in which revenue is collected. 18. In the circumstances, I do not see any merit in the appeals filed by the dealers. They are rejected. 19. Thus all the three appeals are rejected. (Pronou ..... 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