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TMI Blog2023 (7) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... ase this Tribunal by majority order reported at T. S Makkar Vs. Commissioner of Central Excise, Surat - 2014 (312) ELT 247 (Tri.Ahmd) set aside the penalties imposed under Rule 209 A of Central Excise Rules, 1944 and Section 112 (b) of Customs Act, 1962. He submits that in view of the aforesaid decision, in this case also penalties are not sustainable. 3. Shri Vijay G. Iyengar, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. I have carefully considered the submission made by both the sides and perused the records. I find that the appellant has acted as broker between the seller of advance licence which are either forged or obtained fraudulently. Under the identical set of facts there were many cases made out. In one of the case decided by this Tribunal's majority decision, the appellant having the same alleged role, the penalty was set aside. In this case of the appellant himself, in the said decision there were difference of opinion between the Member (Judicial) and Member (Technical) thereafter on the basis of the third Member's view, the matter was finally decided by the majority order. The order of the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of difference as follows - 1st point : Whether in the facts and circumstances, it has to be held that Shri T.S. Makkar was aware that the licences were fake, forged or fictitious as held by Member (Technical) or it has to be held that Shri T.S. Makkar was not aware of this fact as held by learned Member (Judicial). 29. There is no dispute on the fact that there exists no direct clinching evidence, oral or documentary, proving awareness on the part of the appellant that the licenses were fake, forged or fictitious. Therefore, what is to be considered is whether the circumstances would suggest such awareness of the appellant on the test of preponderance of probability. In para 19.2 the learned Member (Technical) has recorded his findings on this point while holding that the appellant was aware about the fake, forged or fictitious nature of the licences. His reliance has been mainly on oral statements suggesting that - (i) A heavy premium of 30% was payable coupled with understanding that no supplies would be made and there would be only paper transactions, (ii) The appellant told Shri R.C. Jain that AROs could be used by textile companies particularly EOUs for fulfilling t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed the names of one Shri K.D. Sharma and Shri Nitin Rastogi as the persons who used to buy licences from Shri R.K. Gupta. These persons have also admitted the same. Not only that, he also disclosed the case file number where Shri R.K. Gupta has filed anticipatory bail in Sessions Court of Delhi. Shri R.K. Gupta's affidavit was also on record. No evidence of further sincere investigations on all these evidences by DRI is forthcoming. In para 19.3 the learned Member (Technical) has culled out the efforts made by the DRI. After recording that the appellant informed in his statement dated 5-11-2003 regarding filing of anticipatory bail by Shri R.K. Gupta in the Court of District Sessions Judge, Delhi along with case number of the same, the learned Member also examined whether the fact that Shri R.K. Gupta was not traced by the DRI can help the appellant in any way. However, it is seen that no serious efforts to trace Shri R.K. Gupta, by taking help of Shri Nitin Rastogi, Shri K.D Sharma. the court records in the Court of District Sessions Judge, Delhi are forthcoming from the records. It therefore appears that no serious efforts were made to locate Shri R.K. Gupta, and I have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35. It is trite that to attract penalty, the penal provisions would require strict interpretation. Even if the present appellant dealt with the licences, he has not dealt with any goods in any manner nor is there any such allegation. Without dealing with the goods in any manner whatsoever, in the facts of the instant case, the ratio laid down in the Larger Bench decision of this Tribunal in case of M/s. Steel Tubes of India Ltd. v. CCE, Indore as reported in 2007 (217) E.L.T. 506 (T-LB) would be a binding precedent, wherein it was held that penalty is imposable under Rule 209A only if excisable goods are dealt with by the person concerned with knowledge of liability of confiscation, and that even where any person has issued only invoices without actual movement of the goods, the said rule cannot be pressed into service for imposing penalty. The following judgments relied by the appellant were also to the same effect. 1. 2004 (165) E.L.T. 206 (Tri.-Del.) Kamdeep Marketing Pvt. Ltd. v. C.C.E., Indore 2. 2004 (178) E.L.T. 578 (Tri.-Chennai) D. Ankineedu Chowdary v. C.C.E., Chennai. 36. I am not persuaded to accept that these precedents would not have a binding effect in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no doubt that he was concerned in dealing with prohibited goods. The Hon'ble Supreme Court therefore was of opinion that the Hon'ble High Court was in error in holding simply because the purchase was not complete that Sitaram was not concerned in dealing with the smuggled gold which was found with the Chinese accused. It is not the case of the Revenue that similar fact situation arises in the present appellant's case. Even the ratio laid down in binding precedents of this Tribunal and the Larger Bench, is in no way contrary to what the Hon'ble Supreme Court has held in Sachidananda Banerjee's case. In the instant case, neither the appellant dealt with the goods, nor had agreed to deal with the goods in any manner whatsoever so as to attract penalty under Rule 209A. 39. Since, none of the acts referred to in Section 112(b) of Customs Act, 1962 are proved against the appellant, imposition of penalty under Section 112(b) also cannot sustain. 40. Therefore, in the facts and circumstances of the case, the appellant is not liable to penalty as held by learned Member (Judicial). Registry is directed to place the file before the Bench for further action." From the above decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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