TMI Blog2015 (11) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... out as to which the provision of Central Excise Rules has been contravened by the appellant. There was allegation of clearance of finished goods without payment of duty as well as availing CENVAT Credit fraudulently on the basis of bogus invoices procured from Registered Central Excise without physically receiving any raw material against these company and in this case, Shri Sanjay Vimal Bhai Deora was sought to be penalized under Rule 26 for being concerned in clearance of the goods without payment of duty. But in the present case, the appellant Shri V.K. Tulsian, Chartered Accountant had absolutely no role in illicit clearance of the gutka without payment of duty by M/s. Shyam Traders. - Imposing penalty of ₹ 50 lakh on the appellant is not sustainable. The same is set aside - Decided in favour of assessee. - Appeal No. E/1806/2007-EX [DB] - Final Order No. 51701/2015 - Dated:- 11-3-2015 - Shri Rakesh Kumar, Member (Technical) And Shri S.K. Mohanty, Member (Judicial) For the Petitioner : Shri Prashant Shukla, Advocate For the Respondent : Shri Govind Dixit, DR ORDER Per: Rakesh Kumar The facts leading to filing of this appeal are, in brief, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ender Jain, the claim of Sanjeev Mishra based on the certificate given by Shri V.K. Tulsian that the cash of ₹ 4,38,80,530/- seized from the premises was share application money received from investors who wanted to invest in SVOL, appeared to be false. 1.2. It is in view of the above investigation that a show cause notice dated 14/10/2010 was issued to M/s. Shyam Traders. In the show cause notice, besides the duty demand of ₹ 7,17,16,530/- from M/s. Shyam Traders in respect of the alleged clandestine clearances of Gutka during period from 1/1/2001 to 19/10/2003 along with interest thereon under section 11AB and imposition of penalty on them under section 11AC, there was also proposal for imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on Shri V.K. Tulsian, who was alleged to have given the false certificate that the cash of ₹ 4,38,80,530/- seized from the residential premises of Shri Sanjeev Mishra, proprietor of M/s. Shyam Traders was share application money received from investors for investment in SVOL claimed to have been promoted by Shri Sanjeev Mishra. 1.3 The Commissioner in his adjudication order dated 23/3/2007 besides confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty of ₹ 50 lakhs on the appellant is not sustainable. 4. Shri Govind Dixit, ld. DR for the respondent, defended the impugned order by reiterating the findings of the Commissioner in the impugned order and pleaded that while in para 5 of the Tribunal s order dated 12/8/2011 in case of M/s. Shyam Traders in respect of appeal filed against the Commissioner s order dated 23/3/2007, the Tribunal has discussed the role of Shri V.K. Tulsian (appellant in this case) also along with the role of Shri Sanjeev Mishra, Shri Pratyush Mishra, Shri Virender Jain and Shri Surender Kumar Jain expressing the view that the penal provisions of Rule 26 are not attracted in their case, the operative portion of the order is silent about the appellant- Shri V.K. Tulsian and thus, there is a mistake apparent from records in the Tribunal s order, which could be rectified only on the basis of an application for rectification filed under section 35C (2) of Central Excise Act during the period prescribed for the same and since no such rectification application has been filed, the Tribunal, at this stage, cannot deal with the issue of imposition of penalty on the appellant. Shri Dixit also cited the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sable goods which he knew or had reason or liable for confiscation. It is settled law that the expression in any other manner in Rule 26 has to be construed in ejusdem generis with the words appearing before this expression and therefore, penalty under this Rule is imposable on a person who has dealt with any excisable goods in the manners specified in this Rule while knowing or having reason to believe that the goods dealt with are liable for confiscation. Abetment of duty evasion or of the activities enumerated in this rules is not covered. In the present case, the appellant has not dealt with any excisable goods inasmuch as he has neither acquired possession of any excisable goods nor he is in any way concerned in transporting, removing, keeping, depositing, concealing, selling, or in any other manner dealing with excisable goods which he knew or had reason to believe are liable for confiscation. The Appellant s alleged activity would at the most amount to abetment of duty evasion which as discussed above is not covered by Rule 26. Therefore, the penal provisions of Rule 26 are not attracted in the case of the appellant for his alleged act of fabrication of documents to give l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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