TaxTMI 
TaxTMI 
2013 (1) TMI 201
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....ebate claims with the Deputy Commissioner of Central Excise, Division-V, Surat-I for a total amount of Rs.20,60,800/- by showing export of various types of fabrics totally admeasuring 4,34,700 LM's valued at Rs.2,06,08,000/- through exporter M/s Shree Sairam International, Surat. The said rebate was sanctioned to them vide cheque dated 14.5.2004. On subsequent inquiry at the registered premises of M/s Ruby Silk Mills, it was found that the said premises was occupied by somebody else. The department also investigated the matter at the end of the exporter M/s. Shree Sai Ram International, but the said premise was also found to be occupied by somebody else. The department further probed into inquiry at the end of CHA, who also disowned the doc....
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...., that out of 15 invoices of their company, 07 invoices were endorsed in favour of M/s Ruby Silk Mills as deposed by Shri Deepak Kedia in his statement. 2. The original adjudicating authority imposed a penalty of Rs.5,86,328/- on the respondent. On an appeal filed by the respondent, in the impugned order, appeal was allowed and the penalty was set aside. Revenue is in appeal. 3. Nobody is present on behalf of the respondent. However, written submissions have been received and a request has been made that decision may be taken on the basis of written submissions. 4. Heard the ld. A.R. and considered the records and the written submissions. 5. In the impugned order the Commissioner has taken a view under Rule 26 of Central Excise ....
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....ector of M/s Jay Shree Rayons Pvt. Ltd. and statement dated 15.4.2005 of the present Respondent. It is also on the records that none of the deponents in the entire investigation had deposed that the present Respondent was part of conspiracy hatched in the name of M/s Ruby Silk Mills. That it is also not denied in the Show Cause Notice nor in the Adjudication order that though the Respondent had issued invoices without physical movement of goods, the duty shown to be paid in the said invoices was genuine and not a fake entry. That while issuing invoices, the Respondent's Company had paid cenvat credit as mentioned in the invoices from the Cenvat Account of M/s Abhishek Fashions Pvt. Ltd." 7. From the submissions it can be seen that the re....
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....ternative submission of the appellant, that even if there is jurisdiction to levy penalty equal to the amount of duty evaded distinction in culpability may be found in person who actually evades the duty and the person who enables the same to be done. This distinction in culpability may be required to be gone into from case to case. The Tribunal does not seem to have been conscious of this issue. 12.The penalty prescribed is admittedly not the minimum. Its quantum will thus be in discretion to be exercised having regard to mitigating or aggravating circumstances. In the context of exercise of discretion of imposition of appropriate sentence, it was observed in State of Karnataka v. Puttaraja, AIR 2004 SC 433 :- "10.....