1. During the course of arguments, the learned Advocate for the appellant relied upon the ratio of the two decisions of this Tribunal relating to penalty imposable under Rule 209A of Central Excise Rules, 1944. Rule 209A reads as follows: 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.
2. In the case of Shaper Chemicals Ltd. v. Commissioner of Central Excise, Mumbai-VII , the West Zonal Bench happened to consider a situation wherein no goods were actually moved but Modvat credit was availed only on the basis of documents without actual receipt of any goods. This Tribunal observed that since it was the case of Revenue itself that goods were never moved, the liability under Rule 209A arrived only on account of the role in fraudulent availment of credit cannot be upheld.Indian Roadways Corporation Ltd. v. CCE, Rajkot reported in 2005 (71) RLT 203 (CESTAT-Mumbai) this Tribunal's decision cited for the proposition that "it is well settled position that Corporation has no mind of its own and therefore no penalty can be imposed under Rule 209A on such corporation".
4. The conclusion reached in Shaper Chemicals Ltd. (supra) that where no physical movement of goods is involved Rule 209A cannot be invoked for imposing penalty has created doubts in our mind in view of the expression "or in any other manner deals with any excisable goods" as contained in the said Rale. Creating false invoice, showing movement of excisable goods "in paper" when in fact the goods actually never moved resulting into loss of revenue, in our opinion cannot go scot-free under the sun, as this cannot be the intention of the legislature of a civilized society.
5. We also note that Rule 209A provides for penalty on any person who is concerned in dealing etc. with excisable. As per the definition in Section 3(42) of the General Clauses Act 1897, "a person would include any company or association or body of individuals, whether incorporated or not". It is, therefore, difficult for us to subscribe to the views expressed by the Bench in Indian Roadways Corporation Ltd.'s case (supra), which had held that corporation, which has no mind of its own cannot be penalized under Rule 209A.6. In our opinion, the ratio of the decisions of both Shaper Chemicals Ltd. and Indian Roadways Corporation Ltd., therefore, requires reconsideration.
7. Accordingly, we refer the above two decisions of this Tribunal for reconsideration of the correctness of the above ratios by a Larger Bench.