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TMI Blog2025 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... ties under the said Rule the provisions specified therein. The said rule being a separate new rule inserted could not have been said to be in respect of the persons covered by Rule 26 (1) which apparently was rule 26 prior to the existence, prior to the date of insertion. The provisions of said rule 26 (2) could not have been invoked for the imposition of penalties on the persons whose offences were specified in terms of Rule 26. There is not even iota of allegation or evidence to show that appellants were concern with handling, removing of any goods which were liable for confiscation. On the contrary, the case against the appellants is that there were paying duties, credit of which was being taken by M/s Accurate Meters Ltd. In the case of COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VERSUS SURYA ISPAT UDYOG [2017 (4) TMI 1298 - CESTAT CHANDIGARH] has held that 'penalty provision for facilitating others in taking credit or issuance of invoice without actual supply of material has been inserted w.e.f. 1-3-2007 by inserting sub-rule (2) of Rule 26 of Central Excise Rules with the issue of Notification No. 8/2007-C.E. (N.T.), dt. 1-3-2007 and during the relevant period there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,31,545/- (Rs. One Crore Nine Lakhs Thirty One Thousand Five Hundred Forty Five only) and order to recover under Rule 13 of the CENVAT Credit Rules, 2001/2002 read with Section 11AC of the Central Excise Act, 1944 as discussed supra; (v) I impose penalty of Rs.10,00,000/- (Rupees Ten Lakhs only) each on Sh. C.L. Sharma, CMD of M/s AML, Sh. Satish Goswami, Director (Commercial) of the AML and Rs 2,00,000/- (Rupees Two lacs only) on Sh. Subhash Gupta, Ex Excise Assistant of Mis AML, and order to recoverunder Rule 13 of the CENVAT Credit Rules, 2001/2002 as discussed supra; (vi) I impose penalty of Rs 5,00,000/- (Rupees five lakhs only) each on Mis Electrovision, 341 Lajpat Rai Market, Delhi, M/s Sunbeam Electronics Pvt Ltd, 78 East Avenue Road, Punjabi Bagh, New Delhi, M/s Hi-Rel Component Center, 4346/4C, Madan Mohan Street Ansari Road, Daryaganj, Delhi, M/s Y.P.Audiovisual Pvt. Ltd., No. 8, D-1 Shopping Center, Janakpuri, New Delhi and M/s Master Distributors, 3rd floor, Duke Hotel Building, 7, Netaji Subhash Marg, New Delhi, and order to recover under Rule 25 of the Central Excise Rules, 2001/2002 read with Section 11 AC of the Central Excise Act. 1944 as discussed supra; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants. As such the fact remains that the impugned order stands passed in the absence of any defence by the advocate. Accordingly, the impugned order needs to be set aside. We order accordingly and remand the matter to the adjudicating authority to decide the matter afresh after affording a proper opportunity to the appellant to put forth their defence. As regards the imposition of penalties on co-noticees, we remand their appeals also, inasmuch as the appeal of main appellants is being remanded and the learned advocate is allowed to raise all the above issues before the Adjudicating Authority." 2.2 Proceedings were initiated against M/s Accurate Meters (Main Noticee) for denial of certain Cenvat credit on the ground that the said credit was taken against the material which were never received by them or used by them for production of the finished goods. 2.3 Appellants before us in the matter are four companies and four individuals (Directors/Partners) in the said companies, alleging that they have only supplied the documents against which credit was taken. 2.4 Penalties, as indicated in para-1 have been imposed upon the appellants in the remand proceedings. 2.5 Aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 26- Any person who 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 rules, shall be liable to a penalty not exceeding the duty on such goods or Two thousand rupees), whichever is greater - [(1)] (2) Any person, who issues - (i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice, or (ii) any other document or abels in 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 under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater]" "Section 11AC-Penalty for short-levy or non-levy of duty in certain cases Where any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded by reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No.8/2007-CE(NT) dated 01.03.2007. From the plain reading of the said notification it appears that Rule 26 as is existed prior to the said amendment was reframed at 26(1) and 26 (2) provided for imposition of penalties under the said Rule the provisions specified therein. The said rule being a separate new rule inserted could not have been said to be in respect of the persons covered by Rule 26 (1) which apparently was rule 26 prior to the existence, prior to the date of insertion. The provisions of said rule 26 (2) could not have been invoked for the imposition of penalties on the persons whose offences were specified in terms of Rule 26. 4.4 Hon'ble Bombay High Court has in the case of Ramesh Kumar Rajendra Kumar & Co. [2015 (325) E.L.T. 506 (Bom.)] observed as follows: 10. Perusal of the aforesaid rule, which is brought on the Statute book with effect from 1st March, 2007, specifically, brings within its fold a person issuing an excise duty invoice without delivery of the goods specified therein or abets in making such invoice or any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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