TMI Blog2016 (12) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... isable goods which he knows or has reason to believe are liable to confiscation under the Act or these Rues. In the facts of the present case fake gate passes were issued but no goods were supplied therefore the dealing of the goods, in particular excisable goods is not involved. The appellants have not involved in the act as mentioned under Rule 209A such as transporting, removing, depositing, keeping, concealing, etc. of any excisable goods which are liable for confiscation. Since no goods were involved the question of dealing with the goods and the confiscation thereof is not involved. Under Rule 209A penalty cannot be imposed on the appellant for the offence committed. We observe that in the new Central Excise Rules 2002, Rule 26 is par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Ispat Ltd., Murbad. It is an allegation that the Bazar scrap supplied to M/s. Singhal Swaroop Ispat Ltd. and the modvat credit was fraudulently passed on the basis of certificate issued on the basis of fake and forged gate passes of the appellant M/s. Nalwa Metal Alloys Ltd. The other appellant Shri Dewat Agarwal is the Director of the beneficiary company M/s. Singhal Swaroop Ispat Ltd. On both the appellants the penalty under Rule 209A of Central Excise Rules 1944 was imposed. Being aggrieved by the Order-in-Original dt. 29.4.1997, the appellant filed these appeals. 3. Shri Roshil Nichani Ld. Counsel for the appellant submits that the penalty under Rule 209A can only be imposed on the person who deals with the excisable goods which he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rule. 4. On the other hand, Shri N.N. Prabhudesai, Ld. Supdt.(A.R.) appearing on behalf of the Revenue submits that on the issue on merits involved in the present case that whether in the facts and circumstances, the penalty under Rule 209A should be imposed when the appellant have not dealt with the goods, the Hon ble Gujarat High Court in the case of Sanjay Vimalbhai Deora Vs. CESTAT 2014 (306) E.L.T. 533 (Guj.) dealing with the Rule 26 of Central Excise Rules, 2002 held that penalty under Rule 26 is imposable. The provision of Rule 26 is pari materia to erstwhile Rule 209A of Central Excise Rules 1944. Against the said judgment of Sanjay Vimalbhai Deora of Gujarat High Court , the appeal was dismissed by the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these Rues. In the facts of the present case fake gate passes were issued but no goods were supplied therefore the dealing of the goods, in particular excisable goods is not involved. The appellants have not involved in the act as mentioned under Rule 209A such as transporting, removing, depositing, keeping, concealing, etc. of any excisable goods which are liable for confiscation. Since no goods were involved the question of dealing with the goods and the confiscation thereof is not involved. Under Rule 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as invoices and gate passes supplied by certain traders, without receiving any goods under such documents. In other words, the case of the department is that credit was availed only on the basis of documents without actual/physical receipt of any duty paid inputs. The evidence against M/s. SSIL consists not only of the statement of the director of M/s. SSIL, who has admitted that M/s. SSIL were liable to debit credit wrongly taken, but also statements of various traders such as Shri Gadhwal of Hindustan Steel Traders, Shri A.R. Agarwal, partner of M/s. Tribhuvan Ispat, Shri S.R. Agarwal, also partner of M/s. Tribhuvan Ispat, Shri Surinderjit Kaur, proprietor of M/s. S.K. Industries, Shri K.K. Sharma, proprietor of M/s. Mukesh Iron S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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