9911796707
TMI Blog2010 (7) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... In nutshell, we may point out that in the show cause notice, inter alia, allegation against the appellant herein was that the appellant had removed excisable goods in contravention of the provisions of Excise Act and Rules and particularly Rule 11 of the Central Excise Rules, sub-section (1) which reads as under: "Rule 11. Good to be removed on invoice. - (1) No excisable goods shall be removed from a factory or a warehouse except under an invoice signed by the owner of the factory or his authorized agent and in the case of cigarettes, each such invoice shall also be countersigned by the Inspector of Central Excise or the Superintendent of Central Excise before the cigarettes are removed from the factory." 3. It was specifically alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- was imposed under Rule 25 of the Rules as well as penalty of Rs. 1,00,000/-was imposed under Rule 13(1) of the Cenvat Credit Rules, 2002. 6. In the instant appeal, we are concerned in this appeal only with the imposition of penalty under Rule 25 of the Rules. The appellant challenged this penalty by filing the appeal before the Commissioner (Appeals) raising the contention that as Rule 25 of the Rules was not invoked in the show cause notice no penalty could be imposed under this provision. This contention was rejected by the Commissioner (A) in the following terms: "6. So far as imposition of penalty of Rs.1,00,000/- under Rule 25 of the Central Excise Rules, 2002 is concerned, there is no doubt that the appellants had contravened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vitiate show cause notice when all allegations are contained in the show cause notice." Further the Hon'ble CESTAT in the case of Standard Industries Ltd. vs. Commissioner of C. Ex. Mumbai-2003 (158) ELT 623 has held that "non mention of Rule in show cause notice not fatal if the facts lead to understanding of the same". Similar views were taken by the Hon'ble Supreme Court in the case of Fortune Impex Vs. Commissioner - 2004 (167) ELT A 134 (SC), wherein the Hon'ble Apex Court has held that "non-mentioning of particular Section of Customs Act 1962 would not vitiate the proceedings when allegations and charges against all the appellants were mentioned in clear terms in the show cause notice." Therefore, in view of the above settled proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons at their logic end in as much as the investigations on the part of the buyers end, were never carried out, but the above modus operandi adopted by the appellants unequivocally, leaves no doubt that the appellants had indulged themselves only in paper transactions with the ulterior motive to pass on the Cenvat credit to the buyers without selling/delivering the excisable goods with the alleged invoices. Therefore, I do not see any reason to interfere with the Order-in-Original so far as the imposition of penalty under Rule 25 of the Rules, is concerned and to that extent, I uphold the Order-in-Original." 7. Not satisfied with the aforesaid decision, the appellant moved to Customs, Excise and Service Tax Appellate Tribunal (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Under these circumstances, the submission of the learned Consultant that Rule 25 has not been invoked in the show cause notice and therefore, no penalty can be imposed does not merit acceptable. The decision of the Hon'ble Supreme Court in Amrit Foods does not apply to the facts of the present case. Similarly, the decision on the case of M.H. Steel Corpn., Ashish Gupta cited supra are of no help to them as the facts of the present case are clearly different from the facts of those cases. It is a clear case of registered dealer admittedly failing in their obligation in accounting the goods received by them. As already observed, accounting does not merely mean accounting in RG-23D but accounting the disposal of the goods as permitted under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n allegedly contravened by the appellant. It was observed that before imposing the penalty, it was necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of Rule 173-Q (which is pare materia of Rule 25 of Central Excise Rules, 2002. 9. There cannot be any dispute about the aforesaid legal position stated by the Supreme Court in the aforesaid judgment. However, in the present case, the appellant was specifically put on notice about the exact nature of contravention, i.e., Rule 11 of the Central Excise Rules, 2002. It is reiterated that no excisable goods shall be removed from a factory or a warehouse except under an invoice signed by the owner of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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