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Commissioner of Central Excise Versus M/s. Bansal Steel Corporation & Others, Shri Ashok Kumar Nageshwar Singh, Partner of M/s. Bansal Steel Corporation

2017 (9) TMI 704 - BOMBAY HIGH COURT

Interpretation of statute - Penalty u/r 209A of CER, 1944 - Whether provisions of Rule 209A are attracted only if the persons concerned have physically dealt with excisable goods with the knowledge or belief that such goods were liable to confiscation & that the provisions are not attracted unless the person concerned has physically dealt with such goods? - Held that: - reliance placed in the case of The Commissioner of Central Excise Versus M/s. Ramesh Kumar Rajendra Kumar & Co. & others [2010 .....

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alt with the excisable goods with the knowledge or belief that such goods were liable to confiscation - rule 209A cannot be invoked. - Appeal dismissed - decided against Revenue. - Central Excise Appeal No. 108 of 2007 - Dated:- 12-9-2017 - Abhay S. Oka And Riyaz I. Chagla, JJ. Ms. P.S. Cardozo, i/b Mr. H.P. Chaturvedi, for the Appellant Mr. Sudhakar Thorat, a/w Mr. Deepak N. Salvi, for the Respondents JUDGMENT ( Per Riyaz I. Chagla J. ) 1. The Appeal has been filed against order dated 7 Mar .....

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knowledge or belief that such goods were liable to confiscation & that the provisions are not attracted unless the person concerned has physically dealt with such goods 2. The facts in brief that arise in the present Appeal are as under : 3. Respondent No. 1 is a partnership firm of which Respondent No. 2 is the Work Manager and Respondent No. 3 is a Partner and responsible for the day today affairs, trading function, etc. of Respondent No. 1. 4. One M/s. Singhal Swaroop Ispat Ltd. was engag .....

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1 and which were alleged to be forged/fake/fictitious. It was alleged that Respondents No. 2 and 3 who were looking after daytoday affairs of Respondent No. 1 as well as one Shri. M.S.R.S. Gadhwal had used blank gate passbooks of Respondent No. 1 for issuing fake gate passes, which gate passes were endorsed by Shri. Gadhwal to M/s. Singhal Swaroop Ispat Ltd. to enable them to avail modvat credit. A show cause notice was issued to M/s. Singhal Swaroop Ispat Ltd. demanding duty of ₹ 42,74,2 .....

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d the modvat credit of ₹ 47,10,546.65 and imposed a penalty of ₹ 10,00,000/each on Respondents No. 1 and 2 and ₹ 5,00,000/on Respondent No. 3 under Rule 209A of the said Rules. 5. The Respondents being aggrieved by the order in original dated 29 April 1997 filed Appeals in CESTAT. The CESTAT initially dismissed the Appeals by order dated 31 August 2004 for non prosecution. However, the same were restored subsequently by the CESTAT vide order dated 4 January 2006 in view of the .....

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ellant being aggrieved by the impugned order, has filed the present Appeal. 6. The Division Bench of this Court by an order dated 5 June 2008 had admitted this Appeal on the substantial questions of law framed therein. 7. Ms. P.S. Cardozo, the learned Counsel appearing for the Appellant, has submitted that the CESTAT has erroneously found in favour of the Respondents by setting aside the penalties imposed against them under Rule 209A of the said Rules, despite the gate passbooks being misused fo .....

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at CESTAT has relied upon its own orders in case of Kamdeep Marketing Pvt.Ltd. Vs. CCE, Indore 2004 (165) ELT 206 and in case of Ram Nath Singh Vs. CCE, Delhi 2003 (151) ELT 451 in support of this finding. 9. Having heard the parties, we are of the view that the only question of law which would arise for determination is whether Rule 209A of the said Rules under which the penalty has been imposed is attracted only when the person has physically dealt with the excisable goods with the knowledge o .....

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f such goods or five thousand rupees, whichever is greater. 10. The Division Bench of this Court by a judgment dated 14 September 2010 passed in The Commissioner of Central Excise Vs. M/s. Ramesh Kumar Rajendra Kumar & Co. & Anr. Central Excise Appeal No. 18 of 2006, in paragraph 7 after extracting Rule 209A has held that : The sine qua non for a penalty on any person under the above rule is: either he has acquired possession of any excisable goods with the knowledge or belief that the g .....

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