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TMI Blog2009 (10) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... voice is liable to a penalty not exceeding the amount of such benefit or 5000/-, whichever is greater. At the outset, it was submitted that Rule 26(2) was inserted on 1-3-2007 & the period of dispute in the instant case is from October, 2003 to March, 2004. Hence, penalty cannot be imposed under the provision non-existent during the relevant period - appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon para 2 of the impugned order at page 1 & also at page 3. Hence, it was submitted that undisputedly IIL was no way involved in the alleged cenvat credit fraud, even as per the investigation. 3. Ld. Counsel further submitted that the instant proceedings are offshoot of a common investigation carried out by the DGCEI, and there are various proceedings pending at various levels. One such case against them came up before the Tribunal, wherein the Tribunal had dropped penalty imposed under Rule 26 of the Central Excise Rules, 2002. The said decision is reported in 2008 (226) E.L.T. 218 (Tri.-Mumbai). Ld. Counsel submitted that the Tribunal had categorically held that IIL could not be said to have knowledge or reason to believe that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ham & IIL was actively involved in passing the wrongful credit. He also relied upon the facts as described in the impugned order at page 3 & 4. Ld. Departmental Representative further submitted that as per Rule 26 of the Central Excise Rules, 2002, any person can be penalized & it is immaterial if it was a corporate entity. For this, he relied upon the Tribunal's Order No. A/200-201/WZ6/09/EB/C-I dated 4-6-2009 [2009 (242) E.L.T. 381 (T)] in the case of Dr. Writre's Food Products v. CCE, Pune-II in which reliance was placed on the Supreme Court Judgment in the case of Sitaram Agarwal reported in 1999 (110) E.L.T. 292 (S.C.) for holding so. 6. After hearing both sides and perusing the records, I find that the case made out in the notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther observed that - "From the above, it is evident that the cenvat credit involved on the HRT is shared between the bidder buyer, transporter, broker & the manufacturer purchasing the invoices for cenvat availment." Hence, I agree with the contention of the Ld. Counsel for IIL that as per the investigation & the notice issued, the said fraud, if any was committed by Viramgam based dealers/supplier, transporters, brokers (bill settlers), CE registered dealers & manufacturer purchasing the invoices for cenvat availment. Also, the submission of Ld. DR that IIL had created a sham or that IIL was actively involved is bereft of any merits. 8. Further, I find that the facts in the present case as also those in the case decided by the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the responsibility of the appellant company and it was the responsibility of the buyer. If that be so, then the question of the appellant company having knowledge or reason to believe that the goods are liable for confiscation does not arise. It is settled law that the Central Excise duty has to be paid on the removal of the goods from-the factory premises, which I find in this case, has been done." The said findings of the Tribunal can be squarely applied in the instant case & consequently penalty can be dropped on this count. Further, neither the show cause notice has proposed, nor the adjudicating authority or the Commissioner (Appeals) has held goods liable to confiscation. As per the various judicial pronouncements relied upon by Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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