Ajay Kumar Mittal, J. - (1.) THIS appeal has been preferred by the assessee under section 35G of the Central Excise Act, 1944 (in short, "the Act") for quashing the order dated February 20, 2013, (M.S. Metals v. C.C.E., [2014] 25 GSTR 573 (Trib. -Delhi)) (forwarding letter dated March 1, 2013), annexure Al in Excise Appeal No. 397 of 2011(SM) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short, "the Tribunal") upholding the levy of penalty upon the assessee. A few facts relevant for the decision of the controversy involved, as narrated in the appeal, may be noticed. The appellant was a registered dealer and engaged in trading of zinc ingots. It purchased goods from M/s. Kiran Metal, Faridabad who was a registered manufacturer against invoice and made payment through banking channels. The appellant sold the goods with invoices to M/s. Sonia Overseas, Panchkula, After investigation by the officers of the Central Excise Commissionerate, it was opined that the appellant neither actually received nor supplied goods to others. The appellant only issued invoices and passed on the Cenvat credit without actually delivering the goods. The Department on the basis of this opinion issued show -cause notice dated March 25, 2009, annexure A2 to the appellant. The appellant submitted reply to the notice. The adjudicating authority passed an order dated March 31, 2010, annexure A3 vide which 100 percent, penalty under rule 26(2) of the Central Excise Rules, 2002 (in short, "the Rules") was imposed. Aggrieved by the order, the appellant filed an appeal before the appellate authority. The appellate authority vide the order dated November 16, 2010, annexure A4 upheld the order passed by the adjudicating authority. Still not satisfied, the appellant filed an appeal before the Tribunal. Vide the order dated February 20, 2013 See M.S. Metals v. C.C.E., [2014] 25 GSTR 573 (Trib. -Delhi), annexure A1, the appeal was dismissed. Hence the present appeal by the appellant.
(2.) THE learned counsel for the appellant submitted that the 100 percent penalty was unjustified. It was further stated that under the rules, imposition of the 100 percent, penalty was uncalled for. After hearing learned counsel for the appellant, we do not find any merit in the appeal.
(3.) THE Tribunal vide the order dated February 20, 20131 noticed as under (page 575 of 25 GSTR): The undisputed facts are that the appellant, a registered dealer, issued bogus invoice without selling any goods to M/s. Sonia Overseas on the basis of which M/s. Sonia Overseas took the Cenvat credit. Though specific rule providing for penalty for such offences was introduced by inserting sub -rule (2) to rule 26 of the Central Excise Rules, 2002 with effect from March 1, 2007, the Hon'ble Punjab and Haryana High Court in the case of Vee Kay Enterprises v. C.C.E. : [2013] 21 GSTR 533 (P&H), in paragraph 10 of the judgment has held that in such cases in spite of non -applicability of rule 26(2) for the period prior to March 1, 2007, penalty can be imposed under rules 25(1)(d) and 26(1) of the Central Excise Rules as the person who purports to sell the goods cannot say that he is not the person concerned in selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of duty. In this regard paragraph 10 of the judgment is reproduced below (page 540 of 21 GSTR): 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, rules 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 duty. The appellant issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoices without delivery of goods 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. In my view, just because the show -cause notice invoked sub -rule (2) of rule 26 which could not be invoked, invoking of a wrong rule would not vitiate, the show -cause notice as the show -cause notice clearly alleges that the appellant had issued a bogus invoice without supplying any material to enable his customer or fraudulently avail of the Cenvat credit and sought imposition of penalty for this offence, which in the view of the judgment of the Hon'ble Punjab and Haryana High Court would attract penalty under rule 25(1)(d) as well as rule 26(1) of the Central Excise Rules, 2002. In view of this, I do not find any infirmity in the impugned order. The appeal is dismissed.;