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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 ..... ated 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 with Rule 26 of the Central Excise Rules, 2002 and Rule 15 of the Cenvat Credit Rules, 2004 amounting to Rs. 1,86,15,263/- being the amount equivalent to the credit of Rs. 1,84,57,043/- under Cenvat Credit availed of, besides education cess of Rs. 1,58,220/-. 3. Brief fact of the case against the petitioner was that he got himself registered as a Manufacturer under the Central Excise Act read with Rule 9 of Central Excise Rules. He, instead of manufacturing the goods, purchased the goods from the open market and supplied it to various purchasers as if they were man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in absence of any adjudication on imposition of quantum of the duty leviable on the goods in question. He also submitted that the provisions which are invoked by the Commissioner, if perused, would go to show that the petitioner was not liable to pay any duty. He also submitted that the petitioner is not a manufacturer as held by the authority and, therefore, he cannot be imposed with any penalty. 8. Mr. Malkan submitted that the Commissioner, Central Excise has in the order in original cancelled the Central Excise Registration of the petitioner which is an administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 is involved in a large scale duty evasion scam and has been appropriately dealt with. Hence, the Court may not invoke its equitable jurisdiction and petition may be dismissed. 10. We have considered rival side submissions. The foundation of the arguments on behalf of the petitioner are that the petitioner is imposed with penalty in absence of any adjudication and imposition of duty. In our view, the entire argument is misconceived. When a person avails of cenvat credit, he admits the liability and quantum of duty payable on the goods. When an invoice is prepared indicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship of the petitioner and the purchasers. The respondent authorities were justified in recovering the duty from the purchasers. Coming to the question of another order passed by the Commissioner Excise-II, Ahmedabad, which is Annexure J to the petition, we find that it is in respect of an altogether different party. It is also observed there in paragraph 30 as under :- "As the said show cause notice is not a part of this proceeding, I am not inclined to give any weightage to the above submissions and moreover, the said assessee is required to show by positive act that they fulfilled the requirements of Rule 9(3) and Rule 9(5) of the said Rules." 13.It is thus clear that it cannot be treated as a binding precedent on the respondent au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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