9911796707
TMI Blog2016 (12) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... ply of the material and on the basis of alleged fake and forged gate passes in respect of MS Scrap, certificates were issued fraudulently, facilitated with the modvat credit to M/s. Singhal Swaroop Ispat Ltd., Murbad. It 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 M/s. Nalwa Metal Alloys Ltd. The other appellant Shri Dewat Agarwal is the Director of the beneficiary company M/s. Singhal Swaroop Ispat Ltd. On both the appellants the penalty under Rule 209A of Central Excise Rules 1944 was imposed. Being aggrieved by the Order-in-Original dt. 29.4.1997, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on the same ground were given waiver of penalties then the equity demands that the present appellants should also be exonerated from the penalties imposed 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 submits that on the issue on merits involved in the present case that whether in the facts and circumstances, the penalty under Rule 209A should be imposed when the appellant have not dealt with the goods, the Hon'ble Gujarat High Court in the case of Sanjay Vimalbhai Deora Vs. CESTAT 2014 (306) E.L.T. 533 (Guj.) dealing with the Rule 26 of Central Excise Rules, 2002 held that penalty under Rule 26 is imposable. The provision of Rule 26 is pari materia to ers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is greater". From the plain reading of the above Rule 209, the person can be liable for penalty only when he acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these Rues. In the facts of the present case fake gate passes were issued but no goods were supplied therefore the dealing of the goods, in particular excisable goods is not involved. The appellants have 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts as above mentioned has been disallowed and recovery thereof directed on the ground that M/s. SSIL were using fake documents such as invoices and gate passes supplied by certain traders, without receiving any goods under such documents. In other words, the case of the department is that credit was availed only on the basis of documents without actual/physical receipt of any duty paid inputs. The evidence against M/s. SSIL consists not only of the statement of the director of M/s. SSIL, who has admitted that M/s. SSIL were liable to debit credit wrongly taken, but also statements of various traders such as Shri Gadhwal of Hindustan Steel Traders, Shri A.R. Agarwal, partner of M/s. Tribhuvan Ispat, Shri S.R. Agarwal, also partner of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
