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TMI Blog2017 (6) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhuraria and Lalit Kumar For the Respondent : Shri G.R. Singh, D.R ORDER Per: Ashok K. Arya 1. The appellants namely, i. Shri Surinder Mohan Gambhir ii. Shri Abhay Kumar Jain iii. Shri Alok Jain iv. Shri Rajeev Jain v. Shri Narendra Gupta vi. Shri Surendra Bhuraria vii. Shri lalit Kumar Sethi are in appeal against Order in Original 06/2010 dated 12/04/2010 whereunder Inter alia penalties have been imposed on the appellants. 2. The brief facts are that: i. Certain persons namely, M/s Sulabh Impex Corporation, M/s Ganpati Trading Link and M/s S.R.D. Exim. Pvt. Ltd, who are registered dealers, were issuing Cenvatable invoices to various manufacturers for fraudulent availment of inadmissible Cenvat credit. ii. The Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals with any excisable goods which he knows or has reason to believe are liable to confiscate under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or rupees ten thousand whichever is greater. 4.1 The Ld. Advocates for the appellants plead that in respect of their offence, there were no excisable goods in existence; therefore, provisions of the then Rule 26 for imposing penalty on them are not applicable. In this regard, they have cited in support Hon'ble Bombay High Court decision in case of Commissioner of Central Excise Vs Ramesh Kumar Rajesh Kumar & Co. 2015 (325) ELT 506 (Bom.) and the Tribunal's decision in case of V.K. Enterprises Commissioner of C.EX., Panchkula 2010 (249) ELT 462 (Tri-Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alized under old rule 26 (as it existed prior to 1st March, 2007) pertained to the period prior to 1st March, 2007 i.e. period of the contraventions/offences is during 2003 to 2005. As the facts stand, there are no physical excisable goods concerning the appellants. The appellants have dealt with directly or indirectly only with the issual of fake invoices on which wrong Cenvat credit was taken by the manufacturers, who have also been issued the notice. During the hearing it has been mentioned that said wrong Cenvat credit taken by the respective manufacturers has been paid back to the exchequer during investigation stage only. 4.6. For similar facts, the Hon'ble Bombay High Court in the case of Ramesh Kumar Rajendra Kumar & Co. (supra) ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the Rules made thereunder like claiming of Cenvat credit or refund is made to be liable to penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. It is, thus, clear that in order to bring within its fold, the case of a present nature. Rule 26 enacted in March, 2007 whereas in the year 1995 when the show cause notice in question was issued, the said rule was not in the statute book. Consequently, the present case needs to be considered on the basis of text of Rule 209A of the Rules and not on the basis of Rule 26 of the Rules referred hereinabove. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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