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TMI Blog2013 (12) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... e attracted under Rule 25 (1) (d) as well as Rule 26(1) of the Central Excise Rules, 2002 – Decided against Assessee. - Excise Appeal No.397 of 2011 (SM) - - - Dated:- 20-2-2013 - Rakesh Kumar, J. For the Appellant : Shri Abhishek Jaju, Adv. For the Respondent : Ms Shweta Bector, DR. PER : Rakesh Kumar The appellant are a registered dealer dealing in zinc ingots. On the basis of an invoice issued by them to M/s Sonia Overseas Pvt. Ltd., M/s Sonia Overseas took Cenvat credit of Rs. 1,04,083/-. Subsequent investigation revealed that the appellant as a registered dealer had issued only a bogus invoices to M/s Sonia Overseas without sale of any goods. In view of this, after issue of show cause notice, the Jurisdictional Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (128) E.L.T. 52 (S.C.) He, therefore, pleaded that the impugned order upheld the penalty on the appellant is not sustainable. 4. Ms. Shweta Bector, the learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that the fact of issue of bogus invoices without supply of any material is not disputed, that Hon'ble Punjab Haryana High Court in the case of Vee Kay Enterprises vs. CCE (supra), the judgments cited by the learned Counsel for the appellant, in para 10 of the judgment had clearly held that in spite of non-applicability of Rule 26 (2), penalty could be imposed under Rule 26, as it existed prior to 1/3/07 as well as under Rule 25 (1) (d) of Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 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 a 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 issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoice or that he did not contravene a provision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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