COMMISSIONER, CENTRAL EXCISE, LUCKNOW Vs. V.K. TULSIAN

JUDGEMENT

(1.) Heard Sri Rajesh Singh Chauhan, learned counsel for the appellant. This appeal questions the correctness of the impugned order of the Tribunal whereby it has been held that neither Rule 26 nor Rule 27 of the Central Excise Rules, 2002 would be applicable so as to attract the penalty clause against the respondent for imposing a penalty of Rs. 50 Lacs on the ground that the respondent had in any way abetted the evasion of excise duty that was leviable on the firm of which he was the auditor and in whose favour he had issued a certificate with regard to the source of the amount that had been recovered during the said proceedings.

(2.) Sri Rajesh Singh Chauhan submits that in relation to the order passed by the Commissioner Central Excise vide order dated 23rd March, 2007 the trader had preferred an appeal before the Tribunal. The Tribunal vide its decision dated 12th August, 2011 had discussed this issue in Paragraph 5 of the order but had not extended any benefit of exonerating the respondent of his alleged abetment and liability so as to invoke the penalty clause under Rule 26 of 2002 Rules. The submission is that in the absence of any such finding the respondent was liable for such penalty which had already been imposed on him.

(3.) The respondent filed his own appeal which has given rise to the present second appeal. The Tribunal after taking notice of the aforesaid facts has independently now recorded a finding that Rules 26 and 27 are not attracted, inasmuch as, the respondent had no role in the alleged clearance of the goods without payment of excise duty and therefore in the absence of any such act or abetment the penalty imposed on the respondent was unjustified. The appeal was accordingly allowed against which the department has come up before this Court.