Full Judgment
3. Ld. Counsel for the appellant refers to the allegation as contained in the show-cause notice as also to the finding records by the original in its order, and submits that there was neither any allegation nor any finding by the original authority that the appellant had dealt with any excisable goods in any such manner as specified under Rule 209A.Counsel submits that, in such circumstances, a penalty under Rule 209A was not warranted. It is his further submission that the lower Appellate authority has not recorded any independent finding on the question whether the appellant was liable to be penalised under any of the rules mentioned in the show cause notice. He prays for vacating the penalty. Ld. JDR, on the other hand, submits that there is conclusive evidence on record to show that the appellant had dealt with gate passes relating to excisable goods by passing on those documents from one party to another, the latter using those documents for availment of Modvat credit. Ld. DR submits that the appellant was abettor of illegal availment of Modvat credit and hence called for penal action under Rule 209A.4. I have carefully examined the rival submissions. The original proposal in the show cause notice was to impose penalty on the appellant under certain other rules of the erstwhile Central Excise Rules, 1944. Subsequently, a corrigendum to the notice invoked Rules 209A and 210 for imposing penalty on the party. The allegation against the appellant was to the effect that he worked as conduit in transfer of gate passes from certain persons to certain other persons. It was further alleged that the persons who received the gate passes used those documents for availing Modvat credit. The department maintained that those documents were fake and, therefore, the Modvat credit taken on the strength of those documents was unlawful. Hence the allegation that the appellant abetted illegal availment of Modvat credit.
Notwithstanding these factual aspects of the case, the immediate question to be examined in this case is whether Rule 209A could be validly invoked against the appellant. That rule reads as under : - "Penalty for certain offences. - Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding three times the value of such goods or five thousand rupees, whichever is greater." The above rule is explicit. The rule will be attracted only by those persons who engage themselves in transporting, removing -------- or in any other manner dealing with excisable goods with the knowledge/belief that the goods are liable to confiscation under the Central Excise Act or Rules. In the instant case, there was not even an allegation that the appellant had in any manner dealt with any excisable goods. Dealing with gate passes, by any stretch of imagination, did not amount to dealing physically with excisable goods. Hence there was no question invoking Rule 209A against him. However, it cannot be lost sight of that, by a corrigendum, the department had proposed to invoke Rule 210 also against the appellant. This rule is a residual provision of law, which provides for certain penalty for breach of any of the Central Excise Rules where no specific penalty is provided elsewhere for such breach. For invoking Rule 210, it has got to be shown by the departmental authorities that no other provision of law specifically prescribed any penalty for the violation alleged. It has got to be established that the noticee committed breach of any of the provisions of the Central Excise Rules so as to attract Rule 210. The department's allegation against the appellant, which has been reproduced in the order of the original authority, is only that he had "abetted commission of offence inasmuch as he had dealt with fake Central Excise gate passes". There was no allegation that the appellant had violated any specific provision of the Central Excise Rules. Thus, it appears, there was reason to invoke Rule 210 either, in this case.
5. I, therefore, set aside the order of the Commissioner (Appeals) and allow the present appeal.