Custom, Excise & Service Tax Tribunal
Shri Imran Khan, Proprietor vs Cce, Meerut-I on 12 June, 2012
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Court No.III
E/Appeal Nos.3169-3173/2010
(Arising out of order in appeal No.28-32/cE/MRT/1/2010-11 dated 30.4.2010 passed by the Commissioner of Customs & Central Excise, Meerut)
Date of Hearing: 12.6.2012
For Approval and signature:
Honble Mr.Mathew John, Technical Member
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1. Whether Press Reporters may be allowed to see
The order for publication as per Rule 27 of the
CESTAT(Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of
the CESTAT (Procedure) rules, 1982 for
publication in any authoritative report or not?
3. Whether their lordships wish to see the fair
copy of the order?
4. Whether order is to be circulated to the
Department Authorities?
1. Shri Imran Khan, Proprietor Appellants
2. Shri Maninuddin
3. Shri Shamim Tyagi
4. Shri Mannan
5. Shri Nasim Ahmad
Vs
CCE, Meerut-I Respondent
Appeared for the Appellant: Shri S.K. Gaur, Consultant
Appeared for the Respondent: Smt. R. Jagdev, DR
Coram: Honble Shri Mathew John, Member (Technical)
ORDER
Per Mathew John:
There are five appeals being considered in this proceeding.
2. The main appellant is Shri Imran Khan Proprietor of M/s Jannat Enterprises. According to case records, he is trader of goods like cement and steel. Shri Shamim Tyagi and Shri Nasim Ahmad are drivers of two different trucks on which MS ingots and runners and rises sold by M/s Jannat Enterprises has been seized by Revenue while conducting transit check. The other two appellants are Shri Mannan and Shri Maninuddin, owners of the two trucks involved.
3. The case made out by Revenue is that officers intercepted the trucks carrying MS ingots and runners and risers on 5.2.2008. While carrying such goods, on interrogation of the drivers, they were not able to produce proper documents showing excise duty payment on the said goods. Therefore, the goods were seized and further investigation conducted. On further investigation, it was seen that the goods belonged to M/s Jannat Enterprises. The Prop. Shri Imran Khan avoided the investigation team for about two weeks and finally when he produced documents showing procurement of these goods from units located in areas where excise duty is exempted, it was seen that the documents produced did not match the description of goods seized, to the satisfaction of the officers. Therefore, a case was made out that the goods seized were excisable goods on which excise duty was not paid and the appellants were liable to penalty under Central Excise Rules. Therefore, show cause notice was issued for confiscating the goods under Rule 25 of the Central Excise Rules and also for imposing penalties on the appellants under Rule 26 of the Central Excise Rules and confiscating the truck as per the proviso of Section 115 of the Customs Act, 1962 made applicable to Central Excise Act.
4. The Counsel for the appellant submits that Rule 25 of Central Excise rules, will apply only to any producer manufacturer or registered person of a warehouse or a registered dealer. None of the appellants fall in any of this category and therefore, confiscation of the goods under Rule 25 of the Central Excise Rules is without authority of law.
5. In the case of penalty under Rule 26, the learned Counsel points out that penalty will apply only in a case where the goods are liable to confiscation under the Act or the Rules. Since these goods cannot be confiscated under Rule 25, penalty cannot be imposed on the appellants under Rule 26.
5. The learned AR for Revenue submits that even after 15 days of seizure of the goods, none of the transporters or the person who claimed to be the owner of the goods, was able to produce proper duty paying documents showing that excise duty on the goods was paid. It is obvious that these are goods cleared from some factory without payment of duty. She took trouble to explain how the documents produced by the appellants, later cannot explain the duty paid nature of the goods seized.
6. Considered arguments of both sides. What I find is that the investigating officers have not been able to identify the factory from which the goods were cleared without payment of duty. The appellants before me are neither a transporter, registered dealer or owner of a warehouse. Therefore, the goods cannot be confiscated in the hands of the appellants as per the provisions of Rule 25 of Central Excise Rules. If the goods cannot be confiscated under Rule 25, penalties imposed under Rule 26 are also not sustainable. So is the confiscation of the vehicles which were seized for the reason that they were carrying non-duty paid goods is also not maintainable. So the question of redemption fine for the goods or the vehicle does not arise. 7. Therefore, I set aside the impugned order and allow the appeals with consequential reliefs, if any.
(Order dictated and pronounced in the open Court.) (MATHEW JOHN) Member (Technical) MPS* ??
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