TMI Blog2015 (7) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... selves was followed. This itself indicates that there was a tactical support from some people within the organization. There is no explanation whatsoever from the appellant s side why the operating procedures prescribed by themselves were not being followed in these cases It is strange that the appellant has placed order to the three dealers of scrap but all the three dealers of scrap in turn got the invoices of SSMIPL. There are evidences that none of the goods have moved from the godown of SSMIPL and on the contrary there are evidences that the goods have moved from godown of such dealers. Further, while the excise invoices were raised by SSMIPL, the commercial invoices were raised by three dealers or appellant No.3,4 & 5. The main appellant was making payment to appellant No.3,4 & 5 and not to SSMIPL. Even after the issue of the show cause notice, the least that was expected was that the main appellant or appellant No.3,4 & 5 could have produced transporter and the drivers to prove that the goods have moved from the godown of SSMIPL and not from any other place. This has not been done for obvious reason as the goods have not moved from the godown of SSMIPL but from various ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigated on the basis of an information and perhaps as a consequence to another investigation undertaken against SSMIPL by the other jurisdictional Commissionerate. 2. Investigation by the jurisdictional Commissionerate of SSMIPL revealed that the said dealer has availed cenvat credit on central excise invoices by various ship breakers which included M/s. Ajay Alloys Casting Pvt. Ltd., Alang, M/s. R.K. Steel Alloys, Pipavav and M/s. Baldev Ship Breakers Ltd., Alang. On enquiries made with the jurisdictional Superintendent in charge of the said ship breaking unit revealed that these ship breakers were not in existence during the period when the invoices were shown to have been issued by them to SSMIPL. This indicated that the central excise invoices issued by these ship breakers on which SSMIPL took the credit were bogus and fake with no corresponding manufacture, clearance or physical movement of goods or without the actual payment of central excise duty. A visit to the godown of SSMIPL by the jurisdictional officer revealed that as against the book balance of duty paid goods of 1350 MT, the physical stock available was only 9 MT. The said discrepancy was taken to mean th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Mumbai. From the above investigation, it was clear that iron and steel scrap obtained by ship breaking covered by various invoices issued by the ship breaking units were either based upon the bogus/fake invoices or the goods covered by the said invoices never moved out of the State of Gujarat to SSMIPL based in Mumbai. Since the scrap covered by such invoices have not been received by SSMIPL, they could not have sold the same to the various persons including the present appellant. Enquiries were also made about the movement of goods from SSMIPL s godown to the present appellant. Enquiries with various truck drivers indicated that they were not aware of any godown of SSMIPL or lifted from the said godown and the scrap were lifted from various other places and thereafter delivered to the appellant s factory. A large number of summons issued to various vehicle owners, transporters whose trucks were used to transport the scrap to the appellant, were returned by the postal authorities with the remarks left / not known . In addition to above statements of certain officials in the main appellant s firm as also the three dealers involved in the present case (appellant No.3,4 5) were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeed shifted goods from ship breakers and the same was subsequently supplied to the appellant. It was also submitted that re-rollable scrap can also be used for melting purpose and the furnace employed in the appellant s factory is capable of melting all types of scrap and, therefore, even if in case SSMIPL has procured metal plates from ship breakers and supplied the same to them, the same would have been used by the appellant as normal melting scrap. It was also submitted that statements of Shri Bansal and other ship breakers were not made part of RUD and, therefore, these statements are not sustainable under the law. It was also submitted that the appellant has taken a total credit of ₹ 20,85,497/- only relating to the said ship breakers and in view of this, the entire denial of cenvat credit is perverse. 3.3 It was further submitted that Revenue s contention that SSMIPL had fraudulently availed cenvat credit without actual receipt of ship breaking scrap and subsequently transferred the same inadmissible credit to the appellant without actually transferring any duty paid material and the appellant incorrectly availed credit on the parallel or duplicate invoices issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave denied transport of goods from SSIMPL to the appellant. It was submitted that copies of nine invoices along with all supporting documents have already been submitted by them and for invoice No.722 dated 29.8.2003 mentioned at serial No.2 of the table, they have not received any material under the said invoice and have not availed any credit on the same. 3.5 As far as Revenue s contention that key person and employees of the appellant have admitted that they have not received ship breaking scrap in their factory, it was submitted that they never placed orders for ship breaking scrap as is evident from the purchaser order and, therefore, employees statements are correct. The fact is also evident from the central excise invoices received and it is not possible for anybody to identify the origin of scrap. It was submitted that none of the employees have stated that they have not received scrap under the cover of the impugned invoices or that the appellant had procured commercial non-duty paid scrap from the market. It was also submitted that Revenue has not brought out any evidence to support that the records were fabricated. As far as Revenue s objection that the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemicals vs. CCE reported in 1996 (88) ELT 710 (T). 3.7 It was submitted that Revenue s reliance in the case of Tigrania Metals Steel Industries reported in 2001 (132) ELT 103 (T) and Limenabh Chemicals reported in 1999 (68) ELT 77 (Mad.) is incorrect. 3.8 It was further submitted that no penalty is imposable on appellant No.2. 4. As far as appellant No. 3,4 5 are concerned, the submission was that they are not registered excise dealers and they have not dealt with the goods in question. It was submitted that they are trader-cum-commission agents for waste and scrap of iron and steel and collect orders from various customers and pass the orders to other traders on a commission margin. It was submitted that they have not issued any cenvat document or any excise invoice under Rule 11 of the Central Excise Rules, 2002 nor under Rule 9 of the Cenvat Credit Rules, 2002. It was further submitted that in the present case they have procured MS scrap from a registered dealer SSMIPL and sold the same directly, i.e. sale in transit to the main appellant, Khopoli. The goods have moved directly from the godown of SSMIPL to the main appellant under the central excise first stage de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MIPL and no goods were procured from them. It is clear from the statements of various transporters that they had not lifted the goods from SSMIPL but the goods were lifted from other places including the dealers, appellant No.3,4 5. This itself proves that what was being done was that the bazaari scrap was being procured by appellant No. 3,4 5 in order to avail the cenvat credit and invoices were being procured from SSMIPL. SSMIPL was not selling any ship breaking scrap as it has come out clearly in the investigation that no ship breaking scrap crossed the Gujarat border for SSMIPL. Therefore, there is no question of their selling the scrap. SSMIPL has procured some invoices from the ship breaking units. Some of the invoices procured were also fake. Based upon such details, SSMIPL has issued invoices in the name of the main appellant as required by appellant No. 3,4 5. It was submitted that it is important to note that the employees of the main appellant have very clearly stated that they have not received any ship breaking scrap. It was submitted that ship breaking scrap is very different from the bazaari/scavenger scrap. During ship breaking, it is mainly the plates of diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial from the godown of SSMIPL to the main appellant. If the transporter had actually transported the scrap from SSMIPL to the main appellant, there was no reason form them to deny the said fact. It was further submitted that the appellants could have produced the drivers of the vehicles to prove that the goods had moved from the godown of SSMIPL to the main appellant. It was submitted that the driver of vehicle No. MCU 2671 had admitted to have delivered scrap to the main appellant. However, he has deposed that he had collected the scrap from the manufacturer in Thane area to the godown of Meegora Steels Pvt. Ltd. at Kalyan and the same was lifted from Meegora Steels Pvt. Ltd. and delivered to the main appellant. This example itself suggests that the scrap was being procured from various sources and supplied to the main appellant and invoices were being procured from SSMIPL. It was also submitted that Rule 3(1) of the Cenvat Credit Rules provides for availment of cenvat credit of duty paid on inputs received in the factory. It is, therefore, essential that the inputs should have suffered central excise duty. The provision cannot be construed to interpret availment of cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd active connivance. Similarly, the three dealers involved in the case might have supplied the scrap from some non duty paid sources and procured invoices from SSMIPL. They are, therefore, concerned with the goods and penalty is imposable under Rule 26 in view of the judgment of the Hon ble Punjab Haryana High Court in the case of Vee Kay Enterprises vs. CCE reported in 2011 (266) ELT 436 (P H) and the said judgment has been followed by the High Court in the subsequent cases also. 6. We have considered the rival submissions. In the present case, Revenue s contention is that the duty paid invoices received from first stage registered dealer cannot be accepted for two reasons. The first reason being that first stage dealer himself has not received the goods mentioned in the invoices from the corresponding original ship breaking units. The second reason is that the goods received by the main appellant is not the ship breaking scrap covered by the said invoices but some other scrap say bazaari/scavenger scrap or other non duty paid scrap. Since the main appellant has not received the duty paid scrap covered by the invoices of the first stage dealer, they could have not availed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts or a provider of taxable service shall be allowed to take credit (hereinafter referred to as Cenvat credit) of the duties specified therein paid on any inputs or capital goods and received by the manufacturer for use in or in relation to the manufacture of final products. Rule 4 of the said Rule stipulates that Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. Rule 9 of Cenvat Credit Rules, 2004 deals with the documents and accounts on the basis of which the Cenvat credit can be taken and this includes an invoice issued by a manufacturer, an importer, a first stage dealer or second stage dealer. Sub-rule (2) further stipulates that no Cenvat credit shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994 are contained in the said document. In case any particulars are missing, Cenvat credit may be taken only with the prior approval of the jurisdictional Asst./Dy. Commissioner of Central Excise, if he is satisfied that the goods or service covered by the document have been received and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Rule either from his personal knowledge or on the strength of a certificate given by a person with whose handwriting or signature he is familiar with or on the strength of a certificate issued to the manufacturer or supplier by the jurisdictional Superintendent of Central Excise. 73.5 The Central Excise duty regime underwent a significant change with effect from 1-10-1996. Under the new regime, assessment of the tax liability by the department which hitherto existed was done away with and self assessment facility was extended to the assessees. 73.6 Paragraphs 134 and 135 of the Finance Minister s Budget Speech for the year 1996-97 lucidly explains the new regime which was introduced. 134. Our excise procedures are outdated and not in tune with the times. They need to be modified. They should encourage voluntary compliance with tax laws by the tax payers. With effect from 1st October, 1996, assessees would no longer be required to furnish copies of invoices along with the monthly returns. All that they would be required to furnish to the excise department will be a simple Return indicating the duty paid on self-assessment basis. Wherever possible the assessees com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their activities since a long time and hence the invoices said to have been issued by them are not genuine. This fact has been confirmed by the letter dated 5-2-2004 and 15-4-2004 issued by the Superintendent of Central Excise, Alang. Further, enquiries made with the transport authorities in Gujarat regarding transport of goods from Gujarat to Bhiwandi/Mumbai revealed that in some cases, the vehicles used for transportation were motorcycles, tankers, cars, autorikshaws, delivery vans, etc., incapable of transporting iron and steel scrap. The third set of evidence are statements of a few of the transporters who were purported to have transported goods from Gujarat to the premises of dealers at Bhiwandi/Mumbai and who have denied transporting any goods from Gujarat to Mumbai. The fourth set of evidence are statements from some of the ship-breakers, namely, Gupta Steel (Ship-breakers), Shirdi Steel Traders, Malwi Ship-Breakers, Panchvati Ship-Breakers and Bansal Shipbreakers. From these statements it is evident that they have not supplied any steel melting scrap to M/s. Simandhar Steel Movers (India) Pvt. Ltd. or Simandhar Enterprises. Instead, they have supplied steel plates of vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to prove the impossible about the movement of scrap from Gujarat to Mumbai. It has also been contended that there has been denial of principles of natural justice inismuch as the department has not furnished a copy of the letter written by them to the Sales Tax Authorities in Gujarat and they have reserved the right to cross-examine the Sales Tax Authorities once the copy of the letter written by the department to the said authorities is furnished. Reliance has been placed on the judgments of this Tribunal in the case of Transpek Industry Ltd. v. Commissioner of Central Excise - 2010 (249) E.L.T. 91 and Monarch Metals P. Ltd. v. Commissioner of Central Excise, Ahmedabad - 2009 (95) RLT 334 = 2010 (261) E.L.T. 508 (Tri.-Ahmd.) and the Narmada Bachao Andolan case. 75.2 I have carefully considered the rival submissions and my conclusions are as under : It is a well known fact that ship-breaking scrap is a high quality scrap made of marine steel and usually it is a re-rollable scrap which are used by rolling mills and are not used for melting purposes as done by the appellants herein. Reliance placed by the appellants in the case of Tata Iron and Steel Co. cited supra, does not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales tax enforcement authorities in Gujarat which categorically state that no vehicle carrying scrap from the ship-breakers to the two dealers in Mumbai have crossed the commonly used checkpost at Bhilad during the impugned period. Thus, it is not one single piece of evidence but a series of evidences that have been brought out by the Revenue which corroborate and strengthen each other and which substantiate the fact that from the documents available on record, the scrap claimed to have been received by the appellants are not the same as those supplied by the ship-breakers in Gujarat on which duty has been paid. In other words, the goods said to have been received by the appellants are different from the goods covered by the documents on record. These evidences, unearthed by the investigation, have not been controverted in any substantial or meaningful way by the appellants except for the bland statement that they are not required to do so. As regards the allegation of denial of natural justice in non-furnishing the letter written by the department to the sales tax authorities, the said letter is not a relied upon document in any of the show cause notices. What is relied upon is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. s case, the issues related to purchase of capital goods by the appellant therein from a registered dealer on payment of duty. In that case there was no dispute about the goods supplied by the dealer and receipt of the same by the assessee. In that context it was held that the assessee buying goods from a registered dealer cannot be expected to examine as to whether the credit availed by such dealer is in accordance with law or not. In the other case pertaining to Monarch Metals Pvt. Ltd. it was held that transporters incriminating statements being in the nature of statements of the co-accused are not a reliable evidence. In the case before me, the charge against the appellant is that the goods on which they have taken Cenvat credit are not the same as the goods appearing in the invoices and transport documents on which duty has been paid. In other words, the dispute is about the identity of the goods on which credit has been taken and also about the fact whether goods have been received at all by the appellants. Thus, the facts in the case laws relied upon by the appellants are completely different and distinguishable from those involved in the present case. The evidences uneart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says : There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S. 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. (See Sarkar on Evidence, 15th Edition, pp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Lord Mansfield in Batch v. Archer (1) according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted . Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as parts of its primary burden. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying S.106, Evidence Act, the burden to establish those facts is cast on, the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in Law of Evidence , (12th Edn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lain the facts established by the department, an adverse inference arises against them coupled with the presumptive evidence adduced by the department. 75.9 The appellants have also argued that if they are required to show that the dealer from whom they purchased the scrap procured the same legitimately, they are being asked to prove the impossible, which is not permissible and have placed reliance on the judgment of the Apex Court in the Narmada Bachao Andolan case. This argument of the appellants has no relevance to the case under consideration. The Hon ble Apex Court in Shanker Raju v. UOI [2011 (271) E.L.T. 492 (S.C.)] observed thus : Where the Legislature clearly declares the intent in the scheme of a language of a statute, it is the duty of the Court to give full effect to the same without scanning its wisdom or policy and without engrafting, adding or implying anything which is not congenial or consistent with such express intent of Legislature. Hardship or inconvenience cannot alter the meaning employed by the Legislature, if such meaning is clear on the face of the statute. If the statutory provisions do not go far enough to relieve the hardship of the member, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants situated in Nasik, the Municipal Corporation authorities have confirmed that as per their records, escort permits, which are statutorily required for movement of these goods into the Corporation area, have not been issued at all which again corroborates the fact that the impugned goods (melting scrap) have not been received by the appellants at all. 76.2 In the case of M/s. Amar Ispat Pvt. Ltd., one of the appellants in the present case, Sri Sunil Fakirchand Agarwal, who was working as the General Manager of the said appellant-firm during the material period, in his statement dated 3-8-2006, recorded under Section 14 of the Central Excise Act, 1944, averred as follows :- To-day you have shown me the invoices issued by M/s. Simandhar Steel Movers India Pvt. Ltd. to M/s. Amar Ispat Pvt. Ltd. and the copies of the RG 23D register maintained by M/s. Simandhar Steel Movers Pvt. Ltd. I agree that 357 invoices issued by M/s. Simandar Steel Movers India Pvt. Ltd. to M/s. Amar Ispat Pvt. Ltd. are not accounted for in the records of M/s. Simandhar Steel Movers Pvt. Ltd. In this regard, it is only possible that M/s. Simandhar Steel Movers India Pvt. Ltd. were supplying only loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the materials supplied by the dealer and received by the appellants, it is clear that the material was non-cenvatable material. In other words, non-cenvatable material was supplied under the cover of invoices for cenvatable material, which once again shows that the documents supplied by the said dealer did not pertain to the goods supplied and the Cenvat credit was transferred fraudulently. 76.4 The appellants contention is that they are not responsible for maintenance of the accounts by the dealer. So long as they have paid consideration for what has been received by them, it is sufficient and they cannot be expected to undertake any responsibility more than this. 76.5 This argument is wrong for the following reasons. Sub-rule (3) of Rule 7 of Cenvat Credit Rules, 2002 as it stood at the relevant time (as also its predecessor and successor rules) clearly provided that Cenvat credit in respect of inputs or capital goods purchased from a first or second stage dealer shall be allowed only if such dealer has maintained records indicating the fact that the inputs or capital goods supplied from the stock on which duty was paid by the producer of such goods or capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the parallel invoices/duplicate invoices the appellants are not entitled for the credit. 76.6 The facts of a case decided by the Hon ble High Court of Bombay on 11th May, 2012 in M/s. Mahalaxmi Cotton Ginning Pressing and Oil Industries v. The State of Maharashtra Ors. [2012 (191) ECR 0433 (Bombay)] closely resembles the case before me and the ratio decided therein has great relevance. In that case, the constitutional validity of Section 48(5) of the Maharashtra Value Added Tax Act, 2002 was under challenge. If the constitutional validity was upheld, the petitioner sought a mandamus to the State to recover from the vendor tax paid on goods of which a set-off was claimed. Consequential orders of set-off and refund were sought. The petitioner was a re-seller of cotton bales and he filed tax returns and based on the purchases effected, claimed Input Tax Credit (ITC) by way of set-off under Section 48. The petitioner supported his claim by tax invoices of his vendor. The petitioner claimed to have submitted data, transaction-wise, in relation to its supplier, including invoice number, date of supply, registration number of the supplier and VAT paid on each purchase. The Dy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the charging provision of MVAT Act, 2002 to pay tax on the sale consideration. There is no independent right to a set-off apart from section 48. The entitlement to a set-off is created by the taxing statute and the terms on which a set-off is granted by the legislation must be strictly observed. 42...Moreover, the concept of a set-off presupposes that tax has been paid in respect of the goods in respect of which a set-off is claimed. To allow a set-off though the tax has not been paid actually would be to defeat the legitimate interests of the Revenue. Hence, in the overall statutory scheme of section 48, sub-section (5) has a rational basis and foundation... In granting a set-off, the Legislature can impose conditions and that imposed in section 48(5) is not lacking in rationality. Moreover, the scheme of set-off in section 48 has to be read in its entirety and as one cohesive whole. The Legislature cannot be compelled to grant set-off, ignoring the conditions which it imposes. The conditions are not severable and are part of one integrated scheme. 76.8 The object and purpose of set-off in the VAT Act and the concept of Cenvat credit in the Central Excise Act and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged the onus cast on them about the receipt of the materials, the presumption that they have not received the materials remain valid and irrebuttable. In such a situation, the only reasonable inference that can be drawn is that they are also a party to the fraud committed by the dealers. This Tribunal in the case of AIA Engineering Pvt. Ltd. v. Commissioner of Central Excise, Ahmedabad-II - 2006 (195) E.L.T. 154 held that where credit has been availed without actually receiving any duty paid inputs and the same has been corroborated by the statement of dealers, extended period of time is rightly invocable. Revenue has also relied on the decision of the Hon ble Apex Court in the case of Commissioner of Customs (Preventive) v. Aafloat Textiles (I) Pvt. Ltd. - 2009 (235) E.L.T. 587 (S.C.). In the case before me, the transaction undertaken by the appellant is a fraud committed on the exchequer in connivance with the dealer. Without receiving duty-paid goods, the appellants availed Cenvat credit on the basis of invoices which covered altogether different goods and in many cases the invoices did not accompany the goods and were received separately. These facts were known to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hought to those differences but in our view, those minor differences will not make any difference in the conclusion. In fact we also note that in the present case, the appellant is a very well established company and producers of various steel and alloy steel items and, therefore, they would have far better knowledge about different types of scrap and it also appears that they are placing the order with certain gradation of scrap such as grade I, grade II etc. On receipt of scrap, gradations were analysed and indicated. We note that in respect of the invoices under discussion, none of the standard operating procedures made by the appellant themselves was followed. This itself indicates that there was a tactical support from some people within the organization. There is no explanation whatsoever from the appellant s side why the operating procedures prescribed by themselves were not being followed in these cases. We also note that under Rule 7 of the Cenvat Credit Rules, the main appellant is required to take reasonable steps to ensure that the inputs received by them are duty paid. In the present case, the appellant has placed the order with appellant No. 3,4 5 but receiving the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vee Kay Enterprises vs. CCE reported in 2011 (266) ELT 436 (P H) has observed as under:- 6. Alternatively, it was submitted even if the appellant was liable to pay duty it did not stand on the same footing as person who wrongly availed of the credit and doctrine of proportionality was required to be applied by taking into account the extent of culpability. In this regard reliance has been placed on order of this Court dated 5-7-2010 in CEA No. 125 of 2010, Commissioner of Central Excise, Chandigarh-I v. M/s. Lalit Steel and Agro Industries making distinction in the matter of quantum of penalty between person who wrongly availed of the cenvat credit and the person who merely issued invoice on the basis of which cenvat credit was wrongly availed. To consider the rival submissions, we may refer to the relevant rules which are as under :- Rule 25-Confiscation and Penalty (1) Subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person or a warehouse or a registered dealer;- (a) remove any exciseable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid date, the matter is covered by orders of this Court referred to above which are not shown to be distinguishable. Accordingly, we hold that the amended provisions will not apply to the acts committed prior thereto. 10. In spite of non-applicability of Rule 26(2), penalty could be levied as the appellant was concerned in selling or dealing with the goods which were liable to confiscation inasmuch as the appellant claimed to have sold the goods in respect of which the cenvat credit was taken. In such a case, Rule 25(1)(d) and 26(1) are also applicable. The person who purports to sell goods cannot say that he was not a person concerned with the selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoices without delivery of goods with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. We are, thus, unable to hold that appellant was not liable to pay any penalty. This conclusion is further supported by the judgment of the Hon ble High Court of Gujarat in the case of Sanjay Vimalbhai Deora vs. CESTAT reported in 2014 (306) ELT 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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