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TMI Blog2015 (3) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... (AR) ORDER Per: Anil Choudhary: Heard the parties on the matter of stay. 2. The appellants pray for stay of the operation of the impugned order wherein penalty of Rs. 10,80,000/- was imposed on the appellant M/s. Varun Impex under Rules 26 and 27 of Central Excise Rules, 2002 and also for the other appellant M/s Ashirwad Fashion, a penalty of Rs. 4,41,838/- has been imposed under Rules 26 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the goods were taken by the Varun Impex at the factory gate of Singh Inc. Further, it is alleged, as regards Ashirwad Fashion that consignment was cleared by Singh Inc. Vide fictitious Central Excise under collusion. Vide the impugned Order-in-Original, learned Commissioner has imposed penalties, recording the findings that "as regards Varun Impex, I observe that since the noticee was not a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and therefore, penalty under Rule 26 is leviable." Further, reliance was placed on amended Rule 26 w.e.f. 1.3.2007 wherein under sub-rule (2) it is provided, "any person who issues (i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice, or (ii) any other document or abets in making such document, on the basis of which the user of said invoice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or ten thousand rupees, whichever is greater." Wherein the goods are not physically involved, being clandestinely removed depositing the goods sold, etc. no penalty can be imposed. Accordingly, the appellants pray for stay of recovery of the penalty till disposal of the appeal. 5. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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