TMI Blog2022 (6) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared and issued in favour of M/s G.K. Founders Pvt. Ltd. without actual delivery of goods to M/s. G.K. Founders Pvt. Ltd. The person who proposed to sell the goods cannot say that he was not a person concerned with selling of goods and merely issued the invoices. Another submission of the learned counsel was that the show cause notice or the impugned order does not propose confiscation of the goods or held liable to confiscation of such goods, this position cannot be appreciated. Appellants were concerned with such cenvatable invoices wherein they shown the clearance of goods without delivery and were in the knowledge that such goods are liable to confiscation. Thus, under the facts and circumstances, the penalty imposed on them is correct. Hon ble High Court of Gujarat in the case of SANJAY VIMALBHAI DEORA VERSUS CESTAT [ 2014 (11) TMI 620 - GUJARAT HIGH COURT] , has held that a person would render himself liable for penalty for indulging in activities mentioned in Rule26 of the Central Excise Rules, 2002, even if goods are not confiscated or had not been rendered liable for confiscation. Further the contention of the appellant that penalty under Rule 26 cannot be inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against whom, the adjudicating authority imposed penalty under Rule 26 of Central Excise Rules, 2002. Since all these appeals challenge the same Order-in-Original 09/MP/VAPI/2011 dated 29.03.2011, they are taken for disposal by this common order. 2. The brief fact of the case is that an intelligence was collected by the officers of preventive Section of Vapi Commissionerate that M/s G.K. Founders Pvt. Ltd. are indulging in evasions of huge amount of Central Excise Duty by fraudulent availment of Cenvat Credit on the strength of Central Excise Invoices issued by M/s Shreeji Aluminium Pvt. Ltd. without physical receipts of the goods. They had procured fake lorry receipts without actual transportation of goods from one transporter i.e. M/s B.S. Patel Roadways. Therefore, simultaneous preventive checks/ searches were carried out on premises of M/s G.K. Founders Pvt. Ltd. transporters and other firms. After thorough investigation, a show cause notice dated 30.12.2009 was issued, proposing demand of Cenvat Credit along with penalty from M/s G.K. Founders Pvt. Ltd. and penalty under Rule 26 of Central Excise Rules 2002 on all the Appellants. By the order-in-original dated 29.03.2011, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned. 3.3 He also submits that impugned show cause notice and order do not bring on records anything to suggest that Shri Paresh Patel was aware of alleged irregular availment of Cenvat Credit by M/s G.K. Founders Pvt. Ltd. Further Shri Paresh did not personally handle the duty paid goods cleared from factory. 3.4 None appeared on behalf of M/s. Steel Metals, in the grounds of appeal it is submitted that the absence of proposal for confiscation of goods penalty under Rule 26 of Central Excise Rules, 2002 is not imposable. The issue involved in the present case is dispute regarding availment of Cenvat Credit in relation to goods which were not dealt with by the appellant for which Rule under reference does not provide guidelines about the quantum of penalty, therefore imposition of penalty under Rule would not be possible. They are firm and therefore also penalty is not imposable on Appellant under Rule 26. 3.5 At the time of hearing of the appeal, none appeared for the appellants M/s B.S. Roadways and Shri Saleem Saheb Patel. In the grounds of appeals, it is mainly submitted that no goods are available for confiscation and have not even been proposed for confiscation. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2014 (306) E.L.T. 533 (Guj.), has held that a person would render himself liable for penalty for indulging in activities mentioned in Rule26 of the Central Excise Rules, 2002, even if goods are not confiscated or had not been rendered liable for confiscation. I also note that all the appellants have full knowledge about every stage of removing, keeping, selling, concealing the excisable goods and the same would not have been possible without their active participation and connivance with each other. I also note that the said judgment of the Hon ble Gujarat High Court has been upheld by the Hon ble Supreme Court as reported in 2014 (309) E.L.T. A131 (S.C.). Further, the Hon ble Punjab Haryana High Court in the case of Vee Kay Enterprises v. CCE reported in 2011 (266) E.L.T. 436 (P H), has held as under :- 9. As regards applicability of provisions introduced on 1-3-2007 to alleged acts committed prior to the said date, the matter is covered by orders of this Court referred to above which are not shown to be distinguishable. Accordingly, we hold that the amended provisions will not apply to the acts committed prior thereto. 10. In spite of non-applicability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quences, however, would ensue, e.g. payment of fine, etc. In view of the above decision of the Hon ble Supreme Court in the case of Madhumilan Syntex (supra), in my considered view the person as mentioned in Rule 26 would cover the company for the purpose of imposition of penalty. Hence, the submission of the learned Counsel on this issue cannot be accepted. Under the circumstances, the penalty imposed on the appellants is correct. 5.2 As far as Appellant M/s Steel Metal is concerned, I find that the said trading firm have played a crucial role in the commission of the offence by M/s G.K. Founders. Appellant were concerned with such cenvatable invoices wherein they shown the clearance of goods without delivery and were in the knowledge that such goods are liable to confiscation. Revenue has been able to prove that the appellants were engaged in the activity of issuance of invoices without movement of the goods. Further, a plain reading of Rule26 indicates that imposition of the penalty therein is not tied to a condition that excisable goods have to be placed under confiscation under the Act/Rules. On the other hand, what the rule propounds is that a person who is invo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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