TMI Blog2023 (12) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provisions indicate that the appellants are eligible for relief for the entire amount of penalty or late fee. The relief is not subject to the satisfaction of the committee constituted for operationalization of the Scheme as in the case of settlement of duty. Had the appellants filed declarations, the said committee had no role but to give relief as contained in Section 124 - the filing of declaration, more so, in the instant case, where only penalty is involved, remains a procedural issue or a formality. Tribunal and High Courts have been consistently holding that procedural infractions, if any, should not come in the way of a substantial right. Penalty - HELD THAT:- Though, no positive act of connivance was evidenced by the above appellants, Commissioner goes on to impose penalty on the appellants - such an order passed without appreciation of the facts and law cannot be sustained. On going through the records of the case, it is seen that no investigation at the end of the transporter/ truck drivers has taken place to falsify the claims of the appellants and to support the allegations by the Department. In the absence of the same, penalty cannot be fastened to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand and has extended relief to the assessees. 3. Learned Counsels further submit that there is a contradiction in the Department s stand on the issue. On the one hand, Department alleges that no goods were transported and on the other hand, penalty is proposed to be levied under Rule 26 of Central Excise Rules, 2002 wherein penalty can only be imposed on persons who have dealt with excisable goods in any manner. Learned Counsels also submit that whereas penalty for issuing only invoice without supply of goods is made punishable by insertion of sub-Rule 2 of Rule 26 of Central Excise Rules, 2002 w.e.f. 01.03.2017, the Department chose to impose the penalty retrospectively i.e. for the period before 01.03.2017. They further submit that the appellants have proved their bona fide by producing the documents showing sale of goods and their transport thereof. Penalty cannot be imposed on suppliers for any fraudulent activity on the part of the receiver; moreover, a company or a firm cannot be penalized under Rule 26. They rely on the following cases: CCE Vs Mini Steel Traders 2014 (309) ELT 404 (P H). Vee Kay Enterprises 2011 (266) ELT 436 (P H). CCE Vs Asim Enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries; M/s V.K Kalra Hosiery Works, Ludhiana; M/s Knit Fab, Ludhiana and M/s Perfect Designer, Ludhiana. He also submits that the role of M/s Jindal Poly Films Limited; M/s Jalan Jee Polytex Limited and M/s Reliance Industries is detailed in the impugned order. He submits that therefore, all the appellants have rendered themselves liable for penalty under Rule 26 of Central Excise Rules, 2002; he submits that there was no bar on imposition of penalty for connivance in the evasion of Central Excise duty before 01.03.2017; the only change was that after 01.03.2007, penalty was prescribed for issuing invoices without movement of goods. He relies on the following case laws: Vee Kay Enterprises- 2011-TIOL-174-HC-P H-CX. M. S. Metals 2014 (309) ELT 241 (P H). Steel Tubes of India Ltd. 2007 (217) ELT 506 (Tri. LB). Shripal Aggarwal 2013 (289) ELT 302 (Tri. Del.). Mahindra Ugine Steel Co. Ltd. MANU/CM/0110/2015. V.K. Enterprises 2010 (249) ELT 462 (Tri. Del.) Cannon Industries Pvt. Ltd. MANU/CM/0079/2019. Sanjay Vimalbhai Deora 2014 (306) ELT 533 (Guj.) and 2014 (309) ELT A131 (SC). Ajay Kumar G. Baheti 2017 (348) ELT 115 (Tri. Mumbai). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or more appeals arising out of such notice which is pending as on the 30th day of June, 2019, and if the amount of duty is, - (i) rupees fifty lakhs or less, then, seventy per cent. of the tax dues; (ii) more than rupees fifty lakhs, then, fifty per cent. of the tax dues; (b) where the tax dues are relatable to a show cause notice for late fee or penalty only, and the amount of duty in the said notice has been paid or is nil, then, the entire amount of late fee or penalty; ---- 10. It is clear from the provision of Section 124 that the applicants are eligible for relief of entire penalty or late fee. Now the question arises as to whether the immunity or relief is automatic or is consequent upon the declaration required to be filed by the assessees. The statutory provisions indicate that the appellants are eligible for relief for the entire amount of penalty or late fee. The relief is not subject to the satisfaction of the committee constituted for operationalization of the Scheme as in the case of settlement of duty. Had the appellants filed declarations, the said committee had no role but to give relief as contained in Section 124. Thus, we find that the filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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