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TMI Blog2013 (1) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... vision relating to evasion of duty. The appellant issued invoices without delivery of goods with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. Thus, unable to hold that appellant was not liable to pay any penalty - appeal filed by the Revenue has to be allowed. Penalty imposed equal to the cenvat credit availed on the basis of fraudulent invoices issued by the appellant is somewhat excessive. In view of the fact that penalty has been imposed on the others who have claimed rebate and cenvat credit also has been denied and rebate sanctioned has been demanded and also in view of the observations of the Hon'ble High Court that the penalty under Rule 26 does not have m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o them. The department then initiated investigation at the end of the bankers of M/s Ruby Silk Mills and also scrutinized their records available with the department and found that there were total four suppliers of finished goods to M/s Ruby Silk Mills. Out of the said four suppliers of finished goods, one of the suppliers was M/s Jay Shree Rayons Pvt. Ltd. Surat. The department recorded statement dated 04.3.2005 of Shri Deepak Nathmal Kedia, Director of M/s Jay Shree Rayons Pvt. Ltd. in which he admitted to provide 07 invoices of M/s Jay Shree Rayons Pvt. Ltd. along with 07 endorsed invoices of M/s Abhishek Fashions Pvt. Ltd. (present Respondent's Company) for 1,18,632.5 LMs of Finished Fabrics valued at Rs.58,63,291/- involving duty of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the relevant time provided for penalty on any person who acquires possession of or in any way concerned in transporting, removing, depositing, keeping, consulting, sale or purchasing or in any settled manner deals with, any excisable goods which he knows or reasons to believe that are liable to confiscation, shall be liable to penalty. He has taken a view that the respondent had simply issued invoice and no goods were transported or supplied and therefore no penalty is imposable under Rule 26 of Central Excise Rules 2002. However, ld. A.R. relies upon the decision of the Hon'ble High Court of Punjab Haryana in the case of V.K. Enterprises 2011 (266) ELT 436 (P H) to submit that penalty is imposable in such circumstances also. 6. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit in their books and without supply of any goods issued invoices and facilitated M/s. Ruby Silk Mills to show that they have received fabrics and make false claims for rebate. 8. In the case of Vee Kay Enterprises - 2011 (266) ELT 436 (P H), the Hon'ble High Court of P H was dealing with somewhat similar matter. In that case the assessee was a registered dealer and it was found that he had issued invoices enabling credit to be taken for the duty paid without actually supplying the goods. Hon'ble High Court after considering the Rule 26 as it existed during the relevant time observed as follows: "10. In spite of non-applicability of Rule 26(2), penalty could be levied as the appellant was concerned in selling or dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 judgment in the facts of each case, is the only way in which such judgment may be equitable distinguished." Since in the present case the Tribunal has not considered the issue of quantum of penalty, the matter may require fresh consideration of the Tribunal to determine the q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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