2022 (6) TMI 774

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....hom, the adjudicating authority imposed penalty under Rule 26 of Central Excise Rules, 2002. Since all these appeals challenge the same Order-in-Original 09/MP/VAPI/2011 dated 29.03.2011, they are taken for disposal by this common order. 2. The brief fact of the case is that an intelligence was collected by the officers of preventive Section of Vapi Commissionerate that M/s G.K. Founders Pvt. Ltd. are indulging in evasions of huge amount of Central Excise Duty by fraudulent availment of Cenvat Credit on the strength of Central Excise Invoices issued by M/s Shreeji Aluminium Pvt. Ltd. without physical receipts of the goods. They had procured fake lorry receipts without actual transportation of goods from one transporter i.e. M/s B.S. Pate....

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.... 2002. He placed reliance on following decisions. • Ekta Enterprises &Ors. 2005 (180) ELT 219 (Tri. Mumbai) • CCE, Pune-I Vs. Keetex 2008(227) ELT 536 (Tri. Mumbai) • Ballary Steel & Alloys Ltd. Vs.CCE, Belgaum -2003 (157) ELT 324 (Tri. Bang.) 3.1 He also submits that the receipts of the goods are questioned at the end of M/s G.K. Founders Pvt. Ltd. The Director of M/s Shreeji Aluminium Pvt. Ltd. in his statement dated 30.11.2006 clearly stated that the goods covered under the invoices mentioned in subject show cause notice were duty paid and cleared to one Shri Mahesh Ranka, however invoices were prepared and issued in favour of M/s G.K. Founders Pvt. Ltd. and the vehicle numbers were mentioned as ....

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....y is not imposable on Appellant under Rule 26. 3.5 At the time of hearing of the appeal, none appeared for the appellants M/s B.S. Roadways and Shri Saleem Saheb Patel. In the grounds of appeals, it is mainly submitted that no goods are available for confiscation and have not even been proposed for confiscation. Under the circumstances, no penalty under Rule 26 can be imposed. Shri Saleem Patel is the owner of M/s B.S. Roadways and separate penalty on the proprietary concern as also the owner cannot otherwise be imposed. 4. Shri Ghanshyam Soni, Joint Commissioner (AR) appearing on behalf of Revenue reiterates the findings of the impugned order. 5. Heard both the sides and perused the records, I find that as far as Appellants M/s Sh....

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....ds or held liable to confiscation of such goods, I am unable to appreciate this position. Appellants were concerned with such cenvatable invoices wherein they shown the clearance of goods without delivery and were in the knowledge that such goods are liable to confiscation. I am of the view that under the facts and circumstances, the penalty imposed on them is correct. I also note that the Hon'ble High Court of Gujarat in the case of Sanjay Vimalbhai Deora v. CESTAT reported in 2014 (306) E.L.T. 533 (Guj.), has held that a person would render himself liable for penalty for indulging in activities mentioned in Rule26 of the Central Excise Rules, 2002, even if goods are not confiscated or had not been rendered liable for confiscation. I also ....

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....ds with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. We are, thus, unable to hold that appellant was not liable to pay any penalty." 5.1 Further the contention of the appellant that penalty under Rule 26 cannot be invoked on company is also not tenable. I find that the Hon'ble Supreme Court in the case of Madhumilan Syntex Ltd. v. Union of India reported in 2007 (210) E.L.T. 484 (S.C.) held that the company is not a natural person but legal' or 'juristic' person, cannot be ordered to suffer imprisonment, other consequences but would ensue e.g., payment of fine, etc. The relevant portion of the said decision is reproduced below :- "23. It is no doubt true ....

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....d on the appellants is correct. 5.2 As far as Appellant M/s Steel & Metal is concerned, I find that the said trading firm have played a crucial role in the commission of the offence by M/s G.K. Founders. Appellant were concerned with such cenvatable invoices wherein they shown the clearance of goods without delivery and were in the knowledge that such goods are liable to confiscation. Revenue has been able to prove that the appellants were engaged in the activity of issuance of invoices without movement of the goods. Further, a plain reading of Rule26 indicates that imposition of the penalty therein is not tied to a condition that excisable goods have to be placed under confiscation under the Act/Rules. On the other hand, what the rule p....