2003 (5) TMI 444

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..... the Commissioner has imposed Rs. 10 lakhs under Rule 173Q of Central Excise Rules read with Section 38A of the Central Excise Act, 1944 for contravention of the provisions of Rules. He said that to levy penalty under Rule 173Q, there must have been clandestine removal of the goods or with an intention to remove the goods without payment of duty. He said that penalty has been imposed on the ground that there was a contravention of Rule 52A of the Central Excise Rules. In this context, he drew my attention to the finding portion as appeared in Para 18 of the impugned order, which is as under :- 18. It is noticed that the assessees have resorted to the practice of raising new invoices to facilitate diversions of consignments from the custo .....

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..... said provision has been specifically omitted by Notification No. 38/2000-C.E. (N.T.), dated 12-5-2000. 4. On the other hand, Smt. Radha Arun drew my attention to the findings given by the Commissioner in Para 19 of the impugned order, wherein it was held that the irregularity committed by them tantamounts to tampering with statutory documents namely change in the consignee s name and address in the respective invoices. This cannot be treated as simple technical mistake. The assessees have diverted the consignment to the depots, which are holding Central Excise Dealer registrations and thereby passed on the duty credit to their customers by using the tampered invoices at their depots. 5. Shri Shivadass in this context submitted that .....

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..... e does not on request by an officer, forthwith produce a valid invoice, or (c) enters any particulars in the invoice which are, or which he has reason to believe to be false, he shall be liable to a penalty not exceeding three times the value of the excisable goods in respect of which any contravention of the nature referred to in clauses (a), (b) or (c) has been committed and such excisable goods shall be liable to confiscation. 7. I have carefully considered the submissions made by both sides with reference to the facts. As can be seen from the impugned order, the Commissioner has imposed penalty of Rs.10 lakhs under Rule 173Q of the Central Excise Rules on the ground that the appellants have contravened the provisions of Rule 5 .....

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