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TMI Blog2016 (12) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... eve are liable to confiscation under the Act or these Rues. In the facts of the present case, fake gate passes were issued but no excisable goods were supplied, therefore the dealing of the goods, in particular excisable goods is not involved. The appellant has not involved in the act as mentioned under Rule 209A such as transporting, removing, depositing, keeping, concealing, etc. of any excisable goods which are liable for confiscation. Since no goods were involved the question of dealing with the goods and the confiscation thereof is not involved. Under Rule 209A penalty cannot be imposed on the appellant for the offence committed. We observe that in the new Central Excise Rules 2002, Rule 26 is pari materia to Rule 209A, when it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an allegation that the Bazar scrap supplied to M/s. Singhal Swaroop Ispat Ltd. and the modvat credit was fraudulently passed on the basis of certificate issued on the basis of fake and forged gate passes of the appellant company. The penalty under Rule 209A of Central Excise Rules 1944 was imposed. Being aggrieved by the Order-in-Original, the appellant filed this appeal. 3. Shri Vinod Awtani, Ld. Chartered Accountant for the appellant submits that the penalty under Rule 209A can only be imposed on the person who deals with the excisable goods which he believes that the goods are liable for confiscation. In the present case no goods involved particularly excisable goods which is liable for confiscation. Therefore without dealing any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed under Rule 209A of the Rule. 4. On the other hand, Shri N.N. Prabhudesai, Ld. Supdt. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He placed reliance on the following judgments: (i) M/s Vijay Prakash D. Mehta Vs. Collector of Customs 2989(39) E.L.T. 178(S.C) (ii) Benara Valves Ltd. Vs. Commissioner of Central Excise 2006 (204) E.L.T. 513(S.C.). 5. We have carefully considered the submissions made by both the sides. The issue to be decided by us in the facts of the case is that the appellant is involved in issuance of fake gate passes and on the basis of which the fraudulent modvat credit was passed on. For such offence whether the appellant is liable for penalty under Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Rules 2002, Rule 26 is pari materia to Rule 209A, when it was realized by the Government that offence of the similar nature of the present case are also occurring for extending the fraudulent benefit by way of fake documents, the legislators have conciously inserted Sub-rule (2) in Rule 26 to bring the present offence under the ambit of penal provision. Since the provision similar to Sub-Rule (2) of Rule 26 was neither existing in Rule 26(1) nor in Rule 209A of Central Excise Rules 1944, the provision of Sub-Rule (2) cannot be made applicable prior to 1.3.2007 when Sub-Rule (2) was inserted. The judgments relied by the Ld. AR having different facts than of the present case, are not relevant. Though there are conflicting decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . S.K. Industries, Shri K.K. Sharma, proprietor of M/s. Mukesh Iron Sheet Traders and other traders. Therefore, the material on record is sufficient to hold that credit had been wrongly availed by M/s. SSIL who were, therefore, required to reverse the same. We, therefore, uphold the recovery of total modvat credit of ₹ 47, 10, 546.65 from M/s. SSIL. Penalty on M/s. SSIL in terms of Rule 173Q also requires to be upheld and we order accordingly. As regards penalties under Rule 209A on the directors of SSIL and the various traders, we find force in the plea put forth by the learned counsel for M/s. Vikas Metal Works (who are alleged to have supplied two invoices, viz. invoice No. 11 and 20 to SSIL to facilitate M/s. SSIL to take credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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