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TMI Blog2011 (7) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold that the gravity of offence would differ from person to person in such cases. - penalty confirmed. - E/847/2009-Ex(BR), E/941-944/2009- Ex(BR), E/946/2009- Ex(BR), E/986/2009- Ex(BR), E/1353/2009- Ex(BR), E/1403/2009- Ex(BR), E/1404 /2009- Ex(BR), E/1406 - 1407/2009- Ex(BR), - 665-676/2011-EX(PB) - Dated:- 12-7-2011 - Mr. Justice R.M. S. Khandeparkar, Mr. Rakesh Kumar, JJ. Appearance: Present for the appellants : Shri Vivek Agarwal, Advocate for M/s. V.K. Enterprises, Shri Prabhat Kumar, Advocate for the Appellants at Sl. Nos.2 to 5, Shri Saurabh Yadav, Advocate for Shri K.K. Anand, Advocate at Sl. Nos.6 to 8. Ms. Seema Jain, Advocate for appellants, at Sl.Nos.9 to 12. Present for the respondent : Shri R.K. Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they will be at liberty to move this court." In case of V.K.Enterprises, the Hon'ble High Court had held thus:- '8. Question for consideration is whether penalty could be levied on the person who did not actually deliver the goods and merely issued a fake invoice which enabled wrong availing of cenvat credit and the extent of penalty which could be levied. 9. As regards applicability of provisions introduced on 1.3.2007 to alleged acts committed prior to the said date, the matter is covered by orders of this Court referred to above which are not shown to be distinguishable. Accordingly, we hold that the amended provisions will not apply to the acts committed prior thereto. 10. Inspite of non-applicability of rule 26(2), penalty could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been very aptly indicated in Dannis Councle MCGDautha V. State of Callifornia, 302 US 183 : 28 LD 2nd 711, that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgement in the facts of each cash, is the only way in which such judgement may be equitable distinguished.' 5. Ld. Advocates appearing for the appellants placing reliance in the decision in the Larger Bench in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely because the appellants were not benefitted to the extent of the credit availed at the buyers, end, it does not, in any way, affect the gravity of offence committed by them and, therefore, they are in fact the partners in the violation of provisions of law along with the manufacturers and buyers and hence, there is no justification for reduction of any penalty. 7. Undisputedly, except Bhupendra Steels (P) Ltd., and its Director, Shri Arun Ghai, all others are the registered dealers. 8. However, Rule 25 of the said Rules, which is attracted in the matter in hand in relation to the imposition of penalty does not make any differentiation between manufacturers and registered dealers in that regard. 9. The Larger Bench in Rama Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be equal partners in the commission of offence. That gravity of offence or violation of provisions of law does not depend upon the actual benefit that the offender obtains from his illegal acts. Gravity of offence essentially depends upon the nature of violation of the provisions of law and its effect in general. There may be cases where violation of the provisions of law may not enure to any individual benefit to the offender. Can it be then said that such offender cannot be penalised at all? Being so, merely because the monetary benefit differs from offender to offender in relation to the offence relating to the same act by various persons that cannot be a criteria to hold that the gravity of offence would differ from person to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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