"PAX + OS82-2400149 VAX APPEL TE FRIBUNAL, es Old Red Bailding,AHahabad-21 101 Branch, Allahabad Dated: 20/03/2047 address in table betow dress in tat olow Order No. A/70269/2017-SMIBR] dated 10/03, to transmit he and Salt Ac ih u certified copy af order passed by the T: 1944. riluuial under section 35-C(1) of the eer 1 Registray Appeat Name and Addre: P Appellant EACROSS. 009 2009 Commissioner of Customs, Central cand Ser Mahabad 4G MARG... 214001 Name and Address of Respondent Sardar Nagar, Gorakbpus, (up), Copy Ta S.P. Ojha 299, Baghambari Housing Scheme, Allabpur, Allahabad, Uttar Pradesh 4 Bar Association, CE bad rector Publications, Customs, Excise, LP. Estate, Delhi a P Pye Lad 1 1B, Bhishm Law Institute of bidia Pvt. Btd., No.2 (old no.36)}, Vaith: 8 Taxmann Ailied Service Pvt. Ltd New Rahtak Road. New Delhi- 110005 OLAWCRUN Advisors Pet Lid, LAW House, 1-8, Sector-1, Faridabad 121003 (Haryana} 1) Faxing com Pet. Ltd. 2nd Floor, Vasant Arcade, 1 Kanj, New Delhi - 110070 11 Mark Protessional Services Pvt. Lid. 108, Everest Block, Aditya Enclave, Hyderabad ~ 38) rena Hil Punjagaita Hyderabad -S00082 mieatindia,com)FF- 19, 1st Floor,Cross River Mall,CBD §N THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE v TRIBUNAL SIE ALLAHABAD APPEAL No. 6/131/2009-EX}SM] With CROSS Application No. E/CROSS/54/2009 {Arising out of Order-in-Appeal No. E12 & EISeCiyAPPLYALL.D2008 d 1 E3¢ sed by Commissioner of Central excise & Customs (Appeals). Allahabad) Comunissioner of Central excise, Allahabad Appellant V5 Mis Saraya Sugar Mills Ltd. Respondent Appearance Shri ID. K. Deb, Assistant Commissioner, (AR). for Appellant Shri S. P. Ojha. Consultant. for Respondent hy Hon’ble Mr. Anil Choudbary, Member (Jadicial) Y Date of Decision: [03/2047 Date of Hear Fy} AL ORDER NO... 70.2 6.9.) 2017... Per: Ani} Choudhary The issue in this appeal by Revenue is, whether the of the finding of the Commissioner (Appeals) ~ as per Rule 2002, is subject to provision of Section Central Excise Rules, HIAC of the Central Excise Act, 1944, therefore, simultaneous and penally under Rule 25 of Central Excise Rules, 20 Sdction 11AC of the Central E Act, 1944, cannot be imposed, dees not appear to be leg. as there is no ally correct, restriclion in the Central Excise law that penalties cannot be imposed under Section 11AC & Rule 25 of the rules independently. Appeut Na 13 bey de 2 ES Crass A, pplicedtion No, 34/09 Heard id. ALR Revenue who has taken me through 1 the facts on record dothe findings of the Additional Comnissioner in the Order-in-Gr ginal and the = Id. nmissioner (Appeals) in the Order-in-Appe Further, refed on the ruling of this Tribunal in the case of Commissioner of Central Excise, Indore V 3 Gahoi Foods Private Lid. reported at 2004 (168} 479 (7 Delhi) mithas held - allowin the appeal of Revenue wl ab orl apportionment of penalty under two provisions of law, namely, 4 Section TTAC of the Act & Rule | {now Rule of Central le se Rules, 2002) could not be made basis by Commissioner (Appeals) for setting aside penalty in toto, Further, reliance is placed on the ruling in the India Lid. Versus Commissioner of xcise, Delhi «lV reparted at 2004 (176) ELL 708 (Tri Delhi) wherein it fas held - rejecting the appeai of the ellarit-< and upholding penalty under Section LiAC of the Act, is correct, this Tribunal following the ratio of ment of Horrbi Supreme urt in the case of Zunjarrao sus Union of Indiz red at | us (S. C) wherein it fias held that the Bhikaji Nagarkar t erstwhile Ce 3Q umpesition of penaley under Rule | 5 of Central Excise Rules, 2002} is mandatory. Jt ts further urged that the Commissioner (Appeals) had not taken inte consideration the fact thar one2. on of facts with intent to ade duty has been suppr ie & afign Na, S49 e Rules, 2002, not exc goods or Rs.iG,000/- whiche imposable. 3. The Jd. Consultant for the re see relies on pondert-ass¢ the impugned order and the cross objections, which are in support of the impugned Order-in-Appeal 4, Having considered the rival contentions and on perus of record, | find from the plain language of Rule which reads se Rules, ons of Section 11 AC of the Q) Subject to the pro i Central Excise Ai 19. if any producer, man ufacer registered person of a warehouse or an importer who issues an invoice, on which nvat credit can be taken or a registered dealer, Clause (A) - removes any e able goods Clause {B) does not count for any goods... Clause (C) - engages in the manufacture, production or storage, without applying for registration... Cl > (D) - contravenes any of the provisions of these : it Rules or the Notification, issued under these Rules with intent to evade payment of duty, noand the then, all such goods shall be Hable to confise producer or manufacturer or registered person of the warehouse or any importer who issues an invoice, on whic 4 Ex Appeal No. $31 Crass Application § at credit can be laken or a registered dealer, ray be, io & penalty not exceeding the duty on the excisable goods, spect of which, any contravention of ihe naire ret to, in clause A or clause B or clause C or ise D, has been coramitted. cle Thus, from the plain reading of the Rules, it is evident i for she purpose of penally not only the default: as mentioned in Ru 5 of Central Excise Rules, 2002, but also ' a the elements of fraud, suppression of facts, misrepresentation,: oy V1AC of the Central Excise Ac 1944, must be present so as to attract penalty under these Rujes. Thus, from the very jangy of the Rule, it is evident that the scheme of the Act read with the Rules, d not provide for Wo ie penalties, one under Section 1IAC of Exeise Act, 1944 and another under Rule 25 of there is no merit ise Rules, : According the Centr in the appeal of Revenue, the same is dismissed. The Cro Objection is alse disposed of. (Dietated and pronounced in Court) -Sd/- (ANIL CHOUDHARY) Member (JUDICIAL) a wf / Certified True Soy - sranforer fe / w eves EX ale 2LLOGL 212002 "