TMI Blog2024 (3) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ; a careful consideration of type of offences indicates that that the circumstances covered fall under Rule 26(2) of Central Excise Rules, 2004 introduced w.e.f. 01.03.2007 and therefore, penalty cannot be imposed under Rule 25 of Central Excise Rules, 2004. Only for the reason that the offence relating to imposition of penalty for issuing Cenvatable invoices without supply of goods is made an offence specifically from 01.03.2007, it cannot be concluded that there was no provision in the rules for imposition of penalty for such offence before 01.03.2007. It is found that a bare reading of the provisions gives a clear understanding that even before the amendment Rule 26 provided for imposition of penalty in the cases where the dealer did not account for the excisable goods or in cases of contravention of provisions of the Act and the Rules. It cannot be said that the dealers have accounted for the rules in a proper manner and did not contravene any provisions of law - The very fact that they have issued invoices in the name of M/s AIPL facilitating them to avail Cenvat credit while they have removed the goods elsewhere is a proof in itself that they did not account for the excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation conducted against them, Revenue came to a conclusion that M/s AIPL has availed Cenvat credit of Rs. 28,01,76,009/- fraudulently without procuring the goods and thus indulging only in paper transactions; a show cause notice dated 23.04.2007 was issued to M/s AIPL and directors inter-alia seeking to confirm the demand of Cenvat credit fraudulently availed along with interest; seeking to impose penalty on M/s AIPL under Section 11AC, Rule 14, and Rule 15 of Cenvat Credit Rules, 2004 and seeking to impose penalty on the directors of M/s AIPL under Rule 25 of the Central Excise Rules, 2002. Penalty was also proposed to be imposed on various dealers and transporters (who are the respondents in this case) under Rule 25/26 of Central Excise Rules, 2002 as may be applicable. the proposals in the show cause notice against M/s AIPL and their directors were confirmed vide impugned order dated 30.12.2008 while discharging all others. On a review of the impugned order, Revenue filed these appeals against the dropping of penalty imposed on various noticees. As the issue involved in all the appeals emanates from the same impugned orders and on the same issue all the appeals are taken up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations issued under these rules with intent to evade payment of duty; The Adjudicating Authority has clearly found that these dealers had issued only the Cenvatable invoices without actual dispatch of goods hence, it is clear that they had wilfully committed fraud with intend to defraud the government exchequer by contravening the provisions of the Rules, framed under the Central Excise Act, 1944 and as such are squarely covered under the provisions of Rule 25 of the Central Excise Rules, 2002. 4. Ld. Authorized Representatives further submits that some un-registered dealers had issued fake invoices to pass on Cenvat credit to enable M/s AIPL to avail Cenvat credit which was not due to them; transporters admitted that they had transported the disputed goods from premises of dealers up to Delhi only; they were not transported to M/s AIPL. Ld. authorized representatives further submits that the adjudicating authority has erred in not imposing the penalty on the respondents while confirming the fact that the impugned material did not enter the state of Punjab. He relies on Navneet Aggarwal 2012 (276) ELT 515 (Tri.-Amd.) and Ajay Kumar G Baheti 2017 (348) ELT 115 and submits that pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the dealers have accounted for the rules in a proper manner and did not contravene any provisions of law. The very fact that they have issued invoices in the name of M/s AIPL facilitating them to avail Cenvat credit while they have removed the goods elsewhere is a proof in itself that they did not account for the excisable goods properly and have violated the provisions of Rule 9 of Central Excise Rules, 2004. Now, the question that comes is as to whether such non-accountal and contravention of provisions is with an intent to evade payment of duty. It is on record that the dealers are registered. They are aware of the provisions of law relating to issuance of invoices. Even then, they have issued Cenvatable invoices in the name of M/s AIPL without ensuring that the goods are also consigned to M/s AIPL. A positive act evidencing the intent to evade payment of duty is in the form of issuing Cenvatable invoices. Therefore, we are of the considered opinion that the dealers had contravene the provisions of rules with intent to evade payment of duty and they have rendered themselves liable to pay penalty under Rule 25 even before the insertion of sub-Section (2) under Rule 26. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble High Court has clearly held that penalty is imposable even prior to amendment of Rule 26 by inserting Rule 26(2) of Central Excise Rules, 2002 . 10. In view of the above, we find that even before insertion of sub-Rule 2 under Rule 26 of Cenvat credit Rules 2004, provisions existed for imposition of penalty under Rule 25 for the offence of issuing Cenvatable invoices without movement of goods. Similarly, there is a provision to impose penalty and for confirming a non-existent transportation goods under Rule 26 of Cenvat Credit Rules, 2004. In view of our discussion as above, looking into the facts and circumstances of the case, the respondent dealers/transporters have rendered themselves liable to pay penalty under Rule 25/26 of Cenvat Credit Rules, 2004 as the case may be. We find that Revenue has a strong case in their favour and the impugned order cannot be sustained as far as dropping of penalty on respondent dealers/transporters. We are also of the considered opinion that such penalty leviable on different dealers/transporters should be commensurate with the offence committed and to wipe of the benefit that has accrued to them while working as a deterrent against any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only 17 M/s N.D. Matel Industries Lid.. S.No. 170/1(1 2) Shed No.03, Panchal Udyog Nagar, Bhimpore, Nani Daman (U.T.). E/1433/2009 Rs. 3,00,000/- (Rupees Three lakhs only) 18 M/s. Amarjit Sons, B-B/17, Puri Market, Laxmipura, Jalandhar E/1434/2009 Rs. 5000/- (Rupees Five Thousand only) 19 M/s Delhi Baroda Road Carrier (P) Ltd.. AG-47, Sanjay Gandhi Transport Nagar, Delhi- 110042. E/1435/2009 Rs. 10,000/- (Rupees Ten Thousand only) 20 M/s. Raj Road Carrier, B4- 600, Sanjay Gandhi Transport Nagar, Delhi. E/1436/2009 Rs. 10,000/- (Rupees Ten Thousand only) 21 M/s DMR Cargo Movers (regd), B.O. Plot No.66 (Near Sunita Textiles) GIDC, VAPI 42. E/1437/2009 Rs. 10,000/- (Rupees Ten Thousand only) 22 M/s Super Goods transport Company. A2/103, Sidharth Nagar, Borivali cast, Mumbai. E/1438/2009 Rs. 10,000/- (Rupees Ten Thousand only) 23 M/s Nitin Cargo Carriers, 203. 2nd Floor, CM-22, Raj Commercial Point, Vapi- 396 195, E/1439/2009 Rs. 10,000/- (Rupees Ten Thousand only) 24 M/s. Rama Road Carriers, Transport Nagar, Ludhiana.. E/1440/2009 Rs. 10,000/- (Rupees Ten Thousand only) 25 M/s. Shree Balaji Express Cargo Services, Plot No. 65-B, Industrial Area-A, Exin., Transport Nagar, Ludhiana. E/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
