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TMI Blog2009 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner - 589 of 2009 - - - Dated:- 18-9-2009 - A.L. Dave and K.A. Puj, JJ. REPRESENTED BY : Shri J.M. Malkan, for the Petitioner. Shri Darshan M. Parikh, for the Respondent. [Order per : A.L. Dave, J. (Oral)]. - The petitioner has approached this Court with this petition under Article 226 of the Constitution of India to challenge the decisions of the CESTAT dated 11-10-2007 and 4-1-2008 so also 5-3-2008. The petitioner also prays for quashing and setting aside the order in original passed by Commissioner, Central Excise, Ahmedabad dated 30-5-2007. 2. By the order in original, the petitioner was imposed with a penalty in exercise of powers under Section 11AC of the Central Excise Act, 1944 read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for modification of the order which came to be rejected. However, the petitioner did not deposit the amount and ultimately, the appeal came to be dismissed. 5. The petitioner has, therefore, approached this Court to challenge the orders of the Tribunal as well as the order in original passed by the Commissioner. 6. We have heard learned advocate Mr. J. M. Malkan for the petitioner and learned advocate Mr. Darshan M. Parikh for the respondent authorities. 7. Mr. Malkan submitted that the order in original is without jurisdiction and, therefore, this petition may be entertained, even though the petitioner had chosen the path of preferring the appeal. According to Mr. Malkan, the petitioner is imposed with a penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is a dispute. But in the instant case, when goods are supplied under an invoice and it contains the value of the duty payable on the goods, there is no question of adjudication or imposition of such duty. Mr. Patel further submitted that the cancellation of registration part is nowhere averred in the petition except in a broad manner seeking prayer for quashing and setting aside the order in original. Similarly, the orders of the Tribunal, if seen, would indicate that the petitioner did not participate in the proceedings before the Tribunal. The petitioner asked for extension of time and also asked for modification of order and having failed there, has approached this Court with this petition. Mr. Parikh submitted that the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into an activity of evasion of duty in huge volume affecting public exchequer and in turn the economy of the country, we do not find any reason to interfere with the order of cancellation of registration. The order does not call for any interference. Except the prayer part in the petition, there is no specific averment made in the petition to challenge this part of the order in original. 12. Similarly, the recovery of duty from the purchasers, if it is adjusted by the purchasers in the account of the petitioner, cannot be attributed to the petitioner. It is a mutual relationship of the petitioner and the purchasers. The respondent authorities were justified in recovering the duty from the purchasers. Coming to the question of anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was on the basis of this provision that it was argued by learned advocate Mr. Malkan that the petitioner is not held to be manufacturer even by the respondent authorities. 15. In this regard, we may observe that Sub-rule (2) of Rule 15 provides imposition of such penalty on the manufacturer also and not only on the manufacturer. Apart from that, it was the case of the petitioner himself that he is a manufacturer and accordingly, he issued invoices which were fake. Now, he cannot be heard to contend that he is not a manufacturer and that apart, the evasion of payment of duty would then be attributable in any event to either fraud or willful mis-statement. The contention, therefore, cannot be accepted. 16. For the foregoing r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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