2015 (3) TMI 471 - AT - Central Excise

Waiver of pre deposit - Penalty under Rule 26 of the Central Excise Rules, 2002 - Assessee did not get themselves registered with the Central Excise Department under the Central Excise Law nor did they discharge any excise duty liability - Held that - Rule 26 states that 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 the duty on such goods or two thousand rupees, whichever is greater. Therefore, primary requirement of the said rule is that the goods should be held liable to confiscation and the person should be aware that the goods are liable to confiscation. - there is no finding given by the adjudicating authority in respect of liability of confiscation of the goods. In the absence of such a finding, imposition of penalty under Rule 26 cannot be sustained. Accordingly, the appellant has made out a strong case for grant of stay. Therefore, we grant waiver from pre-deposit of the penalty imposed against the appellant and stay recovery thereof during the pendency of the appeal. - Stay granted.

Summary

Issues:
- Imposition of penalty under Rule 26 of the Central Excise Rules, 2002 without finding on goods' liability for confiscation.
- Appeal and stay application against Order-in-Original No. 07/2013/C dated 14.5.2013 passed by the Commissioner of Central Excise, Nagpur.

Analysis:
The case involves an appeal and stay application against an order imposing a penalty of Rs. 10 lakh on an individual, the authorized signatory of a firm, for failure to register with the Central Excise Department and discharge excise duty liability. The penalty was imposed under Rule 26 of the Central Excise Rules, 2002. The appellant contended that the penalty under Rule 26 can only be imposed when goods are liable for confiscation, which was not established in the impugned order. The appellant sought a stay on the penalty.

Upon review, it was noted that Rule 26 requires the goods to be held liable for confiscation, and the person should be aware of this liability. The adjudicating authority did not make any finding regarding the liability of confiscation of the goods in the impugned order. Consequently, the imposition of the penalty under Rule 26 was deemed unsustainable due to the absence of such a finding. As a result, the appellant was granted a waiver from pre-deposit of the penalty and a stay on its recovery during the appeal process.

The Tribunal, after considering the submissions made by the learned Additional Commissioner representing the Revenue, concluded that the appellant had presented a compelling case for the grant of a stay on the penalty. Therefore, the waiver from pre-deposit of the penalty was allowed, and the recovery of the penalty was stayed pending the appeal process. The judgment highlights the importance of establishing the liability for confiscation of goods before imposing penalties under Rule 26 of the Central Excise Rules, 2002 to ensure legal compliance and procedural fairness in excise duty matters.