ORDER
S.S. Sekhon, Member (T)
1. These two appeals have been filed by a partnership firm and its partner, who have been penalised under Rule 209A.
2. After hearing both sides, it is found that the penalties have been held to be imposable on these two appellants as they are traders of iron and steel who are alleged to have obtained subsidiary gate passes from the Range Officer by producing forged duty paying gate passes before the Range Superintendent.
3. There is no provision shown to us analogous to Section 132 of the Customs Act, 1962 under the Central Excise Act, 1944 or the rules made thereunder, that Section 132 for wrongly producing a forged/fabricated document in a transaction would call for prosecution and not penalty by quasi judicial authority. Therefore, on considering the charge, even if it is established, it is to be held that obtaining a fraudulent and forged documents by inducement or otherwise of the Superintendent and thereafter obtaining Modvat credit by others cannot call for a penalty under the Central Excise Rules on the partnership firm and or its partner, as in this case.
4. We have considered the submission of the Ld D.R. that confiscation under Rule 173Q (2) of plant and machinery of the Modvat availer have been arrived at which should be considered to be a liability raising and upholding the personal penalties under Rule 209A. We cannot accept the confiscation of the plant and machinery, to be confiscation of Excisable goods, which would call for a penalty, since plant and machinery normally is embedded and may not even excisable and goods liable to confiscation under Rule 209A are only excisable goods and only handling such goods would call for a penalty under that rule.
5. In view of the findings, the penalties as imposed cannot be upheld and are therefore set aside and these two appeals are allowed.
(Pronounced in Court)