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TMI Blog2006 (3) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... a and the remaining one by the transporter of goods, Shri A.K. Goyal, partner of M/s. Rohan Roadways. In this case, investigations made by the department crystallized into a show cause notice dated 10-5-2001 issued to one M/s. Aravali India Ltd. for wrongful availment of Modvat credit to the tune of Rs. 86,87,465/-. The case against them was that they received PVC resin under invoices which contained false description of transporting vehicles which on enquiry were found to be scooter, Motor cycles, tractors, cars, tanker, etc. which were not capable of carrying them in bulk quantity. The allegation, therefore, was that the goods were not really carried to the premises of M/s. Aravali India Ltd. from the premises of M/s. S.K. Co. Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by Shri Anil Kumar Goyal, the representative of M/s. Rohan Roadways and by Shri Durga Singh representative of M/s. Aravali India Ltd. and he had no idea of the kind of such vehicle as he did not physically verify the vehicle numbers due to rush of work on these days. He also stated that he was only concerned with preparing the bills and writing vehicle numbers on the direction received. Further, he stated that the capacity of the warehouse was around 600 tones. 3. Relying upon these statements and also on unfitting description of the vehicles, the show cause notice has alleged that the appellant consignment stockists were in connivance with M/s. Aravali India Ltd. causing heavy loss to the exchequer by issuing fraudulent documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lers, the provisions of Rule 173Q contemplates mens rea on their part and it is for the department to prove that they had entered willfully any wrong information or data while preparing the invoices in question. He also argued at length stating that there was no resultant benefit for them for any such wrongful act on their part as the Modvat benefit would in case have been availed by the manufacturer. He stressed upon the fact that by doing such an act there was no benefit received by them from Aravali India Ltd. directly or indirectly and that there was no allegation by the department to that effect. 5. It was further contended by the Counsel that Rule 209A of Central Excise Rules refers to penalty which is restricted to a person shown t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. Authorized representative of the department also refers to Notification No. 33/94-C.E. (N.T.), dated 4-7-94 and the provisions under the Central Excise Rules (57GG) which has prescribed accounting procedure etc. for the persons issuing invoices. These provisions contemplated certain obligations on the part of the registered person who issue invoices containing the details as prescribed by the Central Board of Excise Customs etc. under Rule 57GG. 9. Further, he refers to the statement of Shri Anil Kumar Goyal dated 9-8-99 in which he had admitted that Shri Durga Singh was paying him @ Rs. 200/- per vehicle for the preparation of bilties. The ld. Authorized representative also emphasizes that Shri Rajeev Kumar of S.K. Co. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcefully contended that there is a restrictive sense for the term registered dealers , in view of the explicit definitions available in respect of first stage dealer and second stage dealer . We are not inclined to be drawn into such an inference, especially when the facts of the matter are crystal clear. It is an admitted fact that the appellant consignment stockist are registered with the department under Rule 174 and they are authorized to issue modvatable invoices under Rule 57G. As per the agreement entered into by them with IPCL, the fiscal responsibility of IPCL stands transferred on to their shoulders. We, therefore, do not agree with the contention that Rule 173Q(i)(bbb) cannot be invoked against the appellant. In their reply a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on them. Instead of issuing invoices in a bona fide way, they have indulged in the gross misuse of this responsibility causing severe injury to the exchequer. We, however, note that the penalty imposed on the appellant-company, being equivalent to the CENVAT credit taken by the manufacturers, Aravali India Ltd. and which comes to a whopping figure of Rs. 86,87,465/- is not justifiable. We therefore reduce the quantum of penalty to Rs. 5 lakhs which we hope will meet the ends of justice. As regards the appeal filed by Shri A.K. Goyal, partner of M/s. Rohan Roadways on the penalty imposed on him, we do not find any justifiable reason to interfere with the impugned order which in our opinion is rational and justifiable. 14. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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