TMI Blog2017 (6) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... iling/taking ineligible benefit under law of Central Excise in the form of Cenvat credit or otherwise; or abetment of making invoices/ documents for availing said ineligible benefit have been made liable to penalty under Rule 26 (2) of CER - issual of invoices/documents, and the abetment in making such documents leading to claiming/taking of ineligible benefit of Cenvat credit etc. by an assessee was not liable to penalty during the relevant period under the then Rule 26 of CER - appeal allowed - decided in favor of appellant. - E/1709/2010-EX[SM], E/1956/2010-EX[SM], E/2018/2010-EX[SM], E/2019/2010-EX[SM], E/2030/2010-EX[SM], E/2088/2010-EX[SM] And E/2956/2010-EX[SM] - A/53794-53800/2017-SM[BR] - Dated:- 1-6-2017 - Mr. Ashok K. Arya, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. The show cause notice was adjudicated by the impugned order in original whereunder inter alia the penalty of ₹ 5 lakhs each has been imposed on each of these appellants. v. Therefore, these appellants are in appeal before the Tribunal. 3. There is none present for the appellant, Shri Surender Bhuraria and Shri Lalit Kumar Seth. For other appellants, the matter has been represented by the Ld Advocates, Shri Jitendra Singh, Ms. Seema Jain, Shri V.K. Sethi and Mr. Rajesh Rawal. The Revenue has been represented by the Ld. DR, Shri G.R. Singh. 4. The facts of the case and submissions of the parties involved have been carefully considered. The penalty imposed on the respective appellants is under the provisions of the then Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rule 26 was amended with effect from 1st March,2007, when a new Sub-Rule 2 was added. 4.4. After having gone through provisions of Rule 26 as it existed prior to 1st March, 2007 and after March, 1, 2007, when insertion of sub-rule 2 was made in Rule 26, it is clear that the offences concerning issual of excise duty invoice and also issual of any other document without delivery of the related goods for availing/taking ineligible benefit under law of Central Excise in the form of Cenvat credit or otherwise; or abetment of making invoices/ documents for availing said ineligible benefit have been made liable to penalty under Rule 26 (2) of Central Excise Rules. Rule 26 as it existed prior to 1st March, 2007 only talks about excisabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscate under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or rupees ten thousand whichever is greater. (2) Any person, who issues- (i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or (ii) any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of Cenvat credit under the Cenvat Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. They were not required to Register themselves with Excise authorities and no violation of any obligation on their part has been cited. Therefore, we are of the view that role of the brokers may not attract the provisions Rule 26, before the amendment. 4.7. Considering the fact that issual of invoices/documents, and the abetment in making such documents leading to claiming/taking of ineligible benefit of Cenvat credit etc. by an assessee was not liable to penalty during the relevant period under the then Rule 26 of Central Excise Rules, and following the Tribunal s judgment in case of V.K. Enterprises (supra) and Hon ble Bombay High Court judgment in case of Ramesh Kumar Rajendra Kumar Company (supra) the penalties impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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