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TMI Blog2013 (11) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant to M/s. Polymermann Asia Pvt. Ltd. showing sales of duty paid capital goods, it cannot be presumed that they had received the payment against those invoices when the evidence on record shows otherwise – order of the Commissioner (Appeals) set aside – Decided in favour of Assessee. Imposition of penalty under Rule 173Q(1)(bbb) of Central Excise Rules 1944 for issue a fake invoices – Held that:- Rule 173Q(1)(bbb) provided for imposition of penalty on any manufacturer, producer, a registered person of a Ware House or registered dealer, who willfully enters any wrong or incorrect particulars in the invoices issued for the excisable goods dealt by him with intent to facilitate the buyer to avail credit of the duty of excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b.2000 they issued invoices to M/s. Polymermann Asia Pvt. Ltd., Nasik regarding the supply of capital goods valued at about Rs. 59,00,000/- involving duty of Rs.7,92,702/- without actually supplying any goods and only with the purpose of enabling M/s. Polymermann Asia Pvt. Ltd. to avail the Cenvat Credit. On the basis of these invoices, M/s. Polymermann Asia Pvt. Ltd. took Cenvat Credit of Rs. 7,92,702/-. The evidence in support of this allegation against the appellant is:- (a) Admitted fact that the type of capital goods which are claimed to have been sold by the appellant to M/s. Polymermann, are not manufactured by them; (b) Statement of their Directors Sh. S.N.Godia and Sh. Dilip Mehta wherein they admitted that the invoices issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Rules, 1944). (ii) Penalty of Rs. 4,00,000/- (Rupees Four Lakh only) on M/s. Polymermann Asia Pvt. Ltd. under Rule 26 of Central Excise Rules, 2002 (Erstwhile Rule 209A of Central Excise Rules, 1944). (iii) Penalty of Rs. 1,00,000/- (Rupees One Lakh only) on Sh. Dilip Mehta under Rule 26 of Central Excise Rules, 2002 (Earlier Rule 209A of Central Excise Rules, 1944). (iv) Penalty of Rs.25,000/- (Rupees Twenty Thousand only) on Sh. S.N.Giodia under Rule 26 of Central Excise Rules, 2002 (Earlier Rule 209A of Central Excise Rules, 1944). 1.4 On appeals being filed to Commissioner (Appeals) the above order of the Assistant Commissioner was set aside in toto vide order-in-appeal dt.15.09.10. Against this order of the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provision in the Central Excise Rules for imposition of penalty for such offence, that in any case, no penalty can be imposed on Sh. S.N.Godia under Rule 26 as he had not dealt with any excisable goods liable for confiscation and that in view of this, the impugned order is not correct. 4. Sh. Rakesh Puri, learned DR, defended the impugned order by reiterating the findings of Commissioner (Appeals) and pleaded that when the appellant company had issued invoices showing clearance on goods on payment of duty, they had collected the amount including duty from the customer, and this amount would be payable by them to the Government which has not been paid, that this amount would therefore, be recoverable under section 11D, that in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transporters. When no goods have been supplied against the invoices issued to M/s. Polymermann Asia Pvt. Ltd. and except for 3% commission, the appellant have not received any thing, there is no question of the appellant having received any amount towards duty which was not paid by them to the Government. Just because the invoices were issued by the appellant to M/s. Polymermann Asia Pvt. Ltd. showing sales of duty paid capital goods, it cannot be presumed that they had received the payment against those invoices when the evidence on record shows otherwise. In view of this so far as the demand under section 11D is concerned, the order of the Commissioner (Appeals) is not sustainable. 8. However, so far as the imposition of penalty for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2011(266) ELT-436 (P H) has held that even in such cases penalty is imposed under section 26 of Central Excise Rules 2001/2002 (analogous to Rule 209 A of Central Excise Rules, 1944 for issue of fake invoices. In this regard para 10 of the judgment is reproduced below:- inspite of non-applicability of Rule 26(2), penalty could be levied as the appellant was concerned in selling or dealing with the goods which were liable to confiscation in as much as the appellant claimed to have sold the goods in respect of which the Cenvat Credit was taken. In such case, Rule 25(1)(d) and 26(1) are also applicable. The person who purports to sell goods cannot say that he was not a person concerned with the selling of goods and merely issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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