2013 (12) TMI 691 - AT - Central Excise

Penalty - Applicability of Rule 26 of Central Excise Rule, 2002 against the transporter Held that - It is not coming out from the list of consignments transported by the appellant, whether in all the consignments Central Excise invoices were made available to the transporter - It has not been brought out anywhere during the investigation that the appellant had the knowledge that some of the consignments transported by them were cleared without payment of duty and were liable to confiscation the consignments taken by the appellant were not included in the pocket diary recovered from the manufacturer - By submitting the list of consignments transported for the manufacturer voluntarily has actually helped the investigators in making out the case of clandestine removal against the manufacturer more strong. Relying upon Vijay Transport Co. Ltd vs. CCE, Daman 2008 (5) TMI 530 - CESTAT, AHMEDABAD and Commr. Of C.EX., Coimbatore vs. Al Matheswara Lorry Service 2004 (1) TMI 537 - CESTAT, CHENNAI - From the statement of the appellant or any other document it has not been brought out by the department that appellant was aware of the clandestine nature of the goods transported - Penalty cannot be based on presumption or assumptions - There are no circumstantial evidence to indicate the involvement of the appellant in the clandestine removal of excisable goods by the manufacturer - no penalty under Rule 26 of the Central Excise Act, 2002 is imposable upon the appellant Decided in favour of Assessee.

Summary

Issues:
- Appeal against imposition of penalty for clandestine removal by a transporter.
- Interpretation of Rule 26 of Central Excise Rule, 2002 regarding liability for penalty.

Analysis:
1. The appeal was filed against the imposition of a penalty on the transporter for clandestine removal by the Commissioner (A) based on an Original Adjudicating Authority's order. The transporter provided services to M/s. Uniform Magnet Wire Industries, against whom the clandestine removal case was made.

2. The penalty of Rs.50,000 was imposed on the transporter, which was contested by the appellant. The appellant argued that they were not aware of the goods being transported liable for confiscation. They provided a list of consignments transported for M/s. Uniform Magnet Wire Industries, emphasizing the lack of knowledge about the goods' nature.

3. The main issue revolved around whether Rule 26 of Central Excise Rule, 2002 applied to the transporter in this case. Rule 26 states that a person handling goods aware of their liability for confiscation can be penalized. The transporter's awareness of the goods' nature was crucial in determining liability.

4. The appellant's advocate cited various case laws to support the argument that the transporter's lack of knowledge about the goods' nature absolved them from penalty under Rule 26. The Commissioner (A) argued that the transporter, being a regular supplier to the manufacturer, should have been aware of the goods' nature.

5. After considering both sides, the Tribunal analyzed the evidence and found that the transporter's lack of knowledge about the clandestine nature of the goods was evident. The list of consignments provided voluntarily by the transporter did not indicate awareness of the goods' nature or involvement in the clandestine activities.

6. The Tribunal emphasized that penalty cannot be based on presumption or assumptions. The lack of circumstantial evidence indicating the transporter's involvement in the clandestine removal led to the conclusion that no penalty under Rule 26 of the Central Excise Act, 2002 could be imposed on the transporter. The appeal was allowed in favor of the appellant.