TMI Blog2016 (8) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (Judicial) Sh. R.P. Jindal, CA, for the appellant Shri Harvinder Singh A.R., for the respondent ORDER The appellant is in appeal against the impugned orders for imposing penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. 2. The facts of the case are that an investigation was conducted and it was alleged that during the impugned period the appellant has issued invoices without accompaning the goods, in that circumstances, the receiver of goods are not entitled to take cenvat credit, therefore, the proceedings were initiated against the appellant as well against the persons on whom the invoices were issued by the appellant. The matters were adjudicated. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2014-SM dated 09.04.2014. 6. Heard the parties and considered the submissions. 7. After hearing of both the sides, I find that the core issue is that in the facts and circumstances of the case whether penalties under Rule 25 of Central Excise Rules, 2002 read with section 11AC of the Central Excise Act, 1944 can be impose on the person who has not dealt with the excisable goods or not? 8. The said issue came before the Hon'ble High Court of Punjab and Haryana in the case of Mini Enterprises (supra) wherein Hon'ble High Court examined the issue and observed as under: 7. This Court in Ashish Gupta and Vee Kay Enterprises s cases (supra) had held that Rule 26(2) of the Rules by virtue of which an assessee was held liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b Rule (2) to Rule 26 of the Central Excise Rules with the issue of Notification No. 8/2007-C.E. (N.T.), dated 1-3-2007. Thus during the relevant period there was no legal provisions for imposition of penalty for such offences. Therefore, penalties imposed upon the appellant Nos. 1, 2, 3, 5, 7, 8, 10, 11 and 17 do not sustain and are set aside. 8. On further appeal by the revenue, the Tribunal confirmed the deletion of penalty with the following observations :- 7. I have carefully considered the submissions from both sides and perused the records. As per the show cause notice, M/s. I.S. Steel Agro Industries have not undertaken any manufacturing activity and therefore, the question of their supplying any goods does not arise. Appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Acts. The Hon ble High Court in the case of CCE, Chandigarh v. Ashish Gupta considered the following question of law : (i) When it has been proved in the investigations that a person has facilitated the other parties in evading Central Excise Duty, by fraudulently facilitating Modvat credit by supplying/endorsing gate passes without actual supply of impugned duty paid goods, whether penalty is imposable on such person under Rule 209A of Central Excise Rules, 1944 or not? The decision of the Hon ble High Court also took note of the fact that the revenue has filed appeals where no penalty was imposed on persons who issued invoices without delivery of the goods prior to amendment of sub-rule (2) of Rule 26 of the Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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