DUGGAR FIBER PVT. LTD. Vs. COMMR. OF C. EX. & S.T., DELHI
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Duggar Fiber Pvt. Ltd.
Commr. Of C. Ex. And S.T., Delhi
Referred Judgements :-
SHRI RAM BILASH BANSAL V. CCE,CHANDIGARH
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(1.)Ashok Jindal, Member (J)
(2.)THE appellants are in appeals against the impugned order imposing penalty under Rule 26 of the Central Excise Rules, 2002. The facts of the case are that an investigation was conducted at the end of the manufacturer buyer to whom the main appellant issued invoices. The allegation of the Revenue is that as the transporting vehicle are not capable of transporting the goods, therefore, it was alleged that main appellant has issued only invoices and not supplied the goods to the manufacturer buyer as the manufacturer buyer has admitted the same. Therefore, penalty under Rule 26 of the Central Excise Rules 2002 was proposed for the invoices issued during the period December, 2004 to January, 2005. Both the lower authorities imposed the penalty on both the appellants. Aggrieved from the said order appellants are before me.
The ld. Consultant appearing on behalf of the appellant submits that in this case invoices have been issued during the period December, 2004 to January, 2005 and show cause notice has been issued on 5 -12 -2005 by invoking extended period of limitation. Therefore, penalty is not imposable. He further submits that during the relevant period the provisions of Rule 26(2) of the Central Excise Rules, 2002 were not in the statute to impose the penalty on the appellant. Therefore, penalty is not imposable as, as per the allegation of the Revenue the appellants have not dealt with the goods. To support his contention he relied on the decision of this Tribunal in the case of Shri Ram Bilash Bansal v. CCE, Chandigarh vide Stay order No. 535/2009 dated 12 -6 -2009 :, 2009 (247) E.L.T. 200 (T). He further submits that on merits also the allegation of the Revenue is that the appellant has not supplied the goods as the vehicles which have transported the goods either is not having the capacity to transport the goods or the vehicle was a stolen vehicle which is mentioned in the invoices. For that he submits that over loading is a common phenomena for transportation of the goods. Therefore, same cannot be a reason for concluding that vehicle has not transported the goods. For stolen vehicle it is submitted that it is not in the knowledge of the appellant that vehicle was stolen and in their statement they have categorically stated this fact. Therefore, penalty is not imposable.
(3.)ON the other hand, ld. AR oppose the contention of the ld. Counsel and submits that in this case on limitation the show cause notice can be issued within five years from the date of knowledge and admittedly in this case show cause notice has been issued within five years of the date of knowledge. Therefore, extended period of limitation is invokable. For imposition of penalty under Rule 26 he submits that the appellants are selling the goods in question. Therefore, penalty under Rule 26 can be imposed. On merits he submits that as it is admitted by the appellant themselves, the vehicle was stolen and therefore, goods cannot be transported by the vehicle. Moreover, the buyer in his statement has categorically stated that they have not received the goods and received only the invoices. Therefore, penalty imposed on the appellants are rightly imposed.
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