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TMI Blog2017 (9) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that Rule 209A can be invoked and the penalty imposed only when the person has physically dealt with the excisable goods with the knowledge or belief that the goods are liable for confiscation. In the present case, the allegation was of unused gate passbooks being misused by the Respondents for the purpose of issuing fake/forged gate passes to assist M/s. Singhal Swaroop Ispat Ltd. There was no case of the Respondents having physically dealt with the excisable goods with the knowledge or belief that such goods were liable to confiscation - rule 209A cannot be invoked. Appeal dismissed - decided against Revenue. - Central Excise Appeal No. 108 of 2007 - - - Dated:- 12-9-2017 - Abhay S. Oka And Riyaz I. Chagla, JJ. Ms. P.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized. The investigations revealed that M/s. Singhal Swaroop Ispat Ltd. had availed modvat credit on 19 gate passes and 158 certificates/subsidiary gate passes. Out of these 19 gate passes, 12 gate passes were issued by Respondent No. 1 and which were alleged to be forged/fake/fictitious. It was alleged that Respondents No. 2 and 3 who were looking after daytoday affairs of Respondent No. 1 as well as one Shri. M.S.R.S. Gadhwal had used blank gate passbooks of Respondent No. 1 for issuing fake gate passes, which gate passes were endorsed by Shri. Gadhwal to M/s. Singhal Swaroop Ispat Ltd. to enable them to avail modvat credit. A show cause notice was issued to M/s. Singhal Swaroop Ispat Ltd. demanding duty of ₹ 42,74,268.50 as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aggrieved by the impugned order, has filed the present Appeal. 6. The Division Bench of this Court by an order dated 5 June 2008 had admitted this Appeal on the substantial questions of law framed therein. 7. Ms. P.S. Cardozo, the learned Counsel appearing for the Appellant, has submitted that the CESTAT has erroneously found in favour of the Respondents by setting aside the penalties imposed against them under Rule 209A of the said Rules, despite the gate passbooks being misused for the purpose of issuing of fake/forged gate passes. 8. Mr. Deepak N. Salvi, the learned Counsel appearing for the Respondents has supported the impugned order of CESTAT and submitted that CESTAT had correctly arrived at the finding that the ingredien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Appeal No. 18 of 2006, in paragraph 7 after extracting Rule 209A has held that : The sine qua non for a penalty on any person under the above rule is: either he has acquired possession of any excisable goods with the knowledge or belief that the goods are liable to confiscation under the Act or Rules or he has been in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or has in any other manner dealt with any excisable goods with such knowledge or belief. Acquisition of possession of goods is, indisputably, a physical act i.e. the act which could not have been done without handling or movement of excisable goods as mentioned in the rule. The words who acquires possession woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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