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TMI Blog2018 (2) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. CEA No. 98 of 2014 has been preferred by the appellant-assessee under Section 35G of the Central Excise Act, 1944 (in short, "the CEA Act") seeking quashing of final Order dated 20-8-2014, Annexure A.1, passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (in short, "the Tribunal") in Appeal No. E/476/2012, claiming following substantial questions of law :- (i) "Whether Order passed by the learned Tribunal is sustainable when the Settlement Commission had settled the case of main notice? (ii) Whether penalty under Rule 25 of the Central Excise Rules, 2002 is sustainable in case goods are not held liable to confiscation as there were no goods? (iii) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 75,000/- vide order dated 1-10-2008, Annexure A.2. After rejection of the application by the Settlement Commission, the assessee contested the show cause notice and filed reply dated 17-3-2009. After considering the matter, the authority did not impose penalty under Rule 25 of the Rules, vide order dated 5-6-2009, Annexure A.3. Aggrieved by the order, the revenue filed an appeal before the Appellate Authority, vide order dated 26-5-2010, Annexure A.4, the Appellate Authority modified the order and allowed the appeal filed by the respondent. Thereafter de novo adjudicating proceedings were initiated by the adjudicating authority. Vide order dated 27-8-2010, the assessee informed the authority that it had filed an appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with selling of goods and had not contravened the provisions of Rule 25 of the Rules. In such cases, the penalty was held to be imposable. The relevant findings recorded by the Tribunal in this regard read thus :- "5. I have considered the facts and submissions of both sides. At the outset, it is to be mentioned that the appellants have conceded that the invoices were issued without ever supplying any goods. As regards their contention that the order of Settlement Commission in respect of M/s. Talbros would cover them too, it is seen that the settlement Commission itself did not admit their case and such non-admission was not on the ground that they would be covered by the main order in case of Talbros. The judgment in the case in K.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is covered by orders of this court referred to above which are not shown to be distinguishable. Accordingly, we hold that the amended provisions will not apply to the acts committed prior thereto. 10. In spite of non applicability of Rule 26(2), penalty could be levied as the appellant was concerned in selling or dealing with the goods which were liable to confiscation inasmuch as the appellant claimed to have sold the goods in respect of which the Cenvat Credit was taken. In such a case, Rule 25(1)(d) and 26(1) are also applicable. The person who purports to sell goods cannot say that he was not a person concerned with the selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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