TMI Blog2008 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... r]-1. These two appeals are filed against the Order-in-Appeal No: RKR (140)123/07 dated 13/07/2007. The appellant company is in appeal against the imposition of penalty of Rs.35,000/- under the provisions of Rule 26 of the Central Excise Rules, 2002 and the Revenue is in appeal against the reduction of penalty by the Commissioner (Appeals) from Rs. 3,17,326/- to Rs. 35,000/-. 2. The facts that arise for consideration are that the appellant company herein sells scrap generated in the factory premises by way of auction to the highest bidder, in e-auction at M/s. Steel Rx. After such sale of scraps on auction, the appellant company cleared the said steel scrap to various persons as was directed by the highest bidder. While removing such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. I find that these statement carries evidential value. As such I hold that M/s. IIL were found to be indulged in to the practice of preparing fake Central Excise Invoices are liable to be penalized." 3. Against the above said finding the appellant company preferred an appeal to the learned Commissioner (Appeals). The learned Commissioner (Appeals) while upholding the penalty on the appellant, reduced the same. The finding of the learned Commissioner (Appeals) are as under: "The issue has been spelt out in Show Cause Notice issued by DGCEI under F. NO. DGCEI/MZU/I ISD/12 (3) 13/Part-2/04 dated 02/05/2006. The appeal is for waiver of penalty, I found that appellant issued so many invoices to parties, without receiving any direct or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not reaching to the destination is not in their jurisdiction. It is his submission that it is for the highest bidder to account for the said goods cleared from the factory. He submits that the provisions of Rule 26, if read, would indicate that the appellant company should have knowledge and reason to believe that the goods are liable for confiscation. It is his submission that once duty liability is discharged, there cannot be any reason or belief that the said goods would be liable for confiscation. Without prejudice to the above submission it was submitted that the appellant company is a limited company cannot be penalized under the provisions of Rule 26 which is para materia to Rule 209A of erstwhile Central Excise Rules, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . vs. Commissioner 2005 (187) ELT 321 was totally different with the facts in this case. As regards the appeal filed by the Revenue it is his submission that the provisions of Rule 26 would directly apply as the appellant company was removing and transporting the goods knowing fully well that these goods will not go to the person who is situated in Gujarat. It is his submission that the appellant company is aware that the transporting of the goods was taking place by trucks which are not allowed to enter into Maharashtra. Hence it is his submission that the penalty amount which has been reduced by the Commissioner (Appeals) is incorrect and the penalty imposed by the adjudicating authority should be restored. 7. Considered the rival s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation under the Act. In this case it is undisputed, that, when the appellant company cleared the consignments of scrap from their factory premises, they had prepared the invoices on the value which was declared by them. It is also undisputed that excise duty on such scrap was paid by the appellant company when the scrap was removed from the factory premises. Once duty liability is discharged on the scrap which is removed from the factory gate, the appellant company is in no way concerned with whether the scrap is going to the place destined as per invoice or to any other place other than the destination. The submission of the learned counsel merits consideration that the appellant company cannot be held to have knowledge or reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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