TMI Blog2021 (2) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... 1AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer (a) removes any excisable goods in contravention of any of the provisions of the rules or the notifications issued under the rules or (d) contravenes any of the provisions of the rules or the notifications issued under the rules with an intent to evade payment of duty, then all such case shall be liable for confiscation and the producer or manufacturer or the registered person of the warehouse or a registered dealer, as the case may be, shall be liable to penalty. Admittedly, the assessee is a registered dealer. The Tribunal rightly referred to Rule 11(7), which covers the removal from the premises of a second stage dealer and for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised the following substantial questions of law for consideration:- 1.In the facts and circumstances, whether, Rule 25 of Central Excise Rules 2004 is applicable during the disputed period to the dealers and whether penalty can be imposed on the dealers under the said Rule; 2.In the facts and circumstances, whether, the first respondent is correct in holding that the appellant has not contested the commission of fraud when all along the appellant is contesting and participating in the proceedings; and 3.In the facts and circumstances, whether, the 1st respondent is correct in not considering the submission that the Commissioner (Appeals), the 1st Appellate Authority, has traversed beyond the scope of the adjudication order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneously held that the allegation of commission of fraud by the assessee was not contested by the assessee. 8.The learned counsel referred to various observations made in the Order in Original dated 21.01.2010, to buttress his submission that the assessee was contesting the said issue. Therefore, it is submitted that Rule 25 of the Rules would not stand attracted more so when, the assessee is not a manufacturer. In support of his contention, the learned counsel placed reliance on the decision in Commissioner of Central Excise vs. LG Equipments [2001 (128) E.L.T. 52 (SC)]. 9.The learned Senior Standing Counsel has prayed for sustaining the order passed by the Tribunal and has referred to Rule 9 as well as Rule 25 of the Rules, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority and the first appellate authority that proper invoices were not issued and consequently, there is contravention of Rule 25(a) in respect of duty paid goods supplied to units not availing CENVAT credit. Further, the Tribunal rightly observed that in respect of non-duty paid goods, cleared to the manufacturers, under invoice showing duty payment, there is a clear violation of the Rules with intent to evade payment of excise duty on final products manufactured by paying such duty through fraudulent credit. Thus, the entire dispute revolves on facts, which have been brought out in detail by the Adjudicating Authority in Order-in-Original dated 21.01.2010. 12.Thus, we find that there is no question of law much l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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