2020 (2) TMI 1198 - AT - Central Excise

Imposition of penalty u/r 26 of the Central Excise Rules, 2002 - no opportunity was given to cross-examine Riyaz Siddiqui despite the fact that mainly by relying upon his statement only, show cause notice was issued to them - principles of natural justice - HELD THAT - The learned Commissioner has not recorded any finding that either of the Appellants had the knowledge or had a reason to believe that the goods were liable to be confiscated which is sine qua non for imposing penalty under Rule 26. Rule 26 pre-supposes the existence of knowledge or reason to believe that the goods are liable to be confiscated under the Central Excise Act or the Rules therein. As there is no finding in the impugned order to that effect, hence the imposition of penalty on the Appellants under Rule 26 is illegal and improper. Therefore, the impugned order did not bring out the existence of required ingredients attracting the provisions of the said rule. Penalty on Suhel Roadlines - Suhel Roadlines has been penalized mainly on the basis of the statement of its proprietor Riyaz Siddiqui - HELD THAT - Due to the non-cooperation of the said Riyaz Siddiqui the proceedings before the lower authority gets delayed. Before the Tribunal also the conduct of the said Riyaz Siddiqui is not appreciable. Although appeal has been filed on behalf of his proprietorship concern Suhel Roalines but nobody appeared to assist at the time of hearing. The plea of cross-examination of Riyaz Siddiqui, which is available to other Appellants and due to which the matter was earlier remanded by the Tribunal on 13.4.2012, is not available to M/s. Suhel Roadlines as the said Riyaz Siddiqui is its proprietor - thus, no case has been made out by Suhel Roadlines- Appellant. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Liability of the Appellants to pay penalty under Rule 26 of the Central Excise Rules, 2002.
2. Validity of penalties imposed without granting cross-examination of key witness Riyaz Siddiqui.
3. Applicability of Rule 26 penalties to corporate entities.
4. Adherence to principles of judicial discipline and natural justice by the Adjudicating Authority.

Detailed Analysis:

1. Liability of the Appellants to pay penalty under Rule 26 of the Central Excise Rules, 2002:
The core issue was whether the Appellants were liable to pay penalties under Rule 26 of the Central Excise Rules, 2002. The penalties were initially imposed based on the alleged diversion of duty-free Polyester Texturised Yarn (PTY) by M/s. Vivilon Textiles Ind. Pvt. Ltd. and others. The Adjudicating Authority confirmed the penalties, asserting that the Appellants connived with M/s. Sunrise Textiles and Suhel Roadlines to divert the goods into the domestic market without discharging the duty.

2. Validity of penalties imposed without granting cross-examination of key witness Riyaz Siddiqui:
The Appellants contended that the penalties were primarily based on the statement of Riyaz Siddiqui, proprietor of Suhel Roadlines, and they were not given an opportunity to cross-examine him. The Tribunal had earlier remanded the matter with specific directions to allow cross-examination. However, the Adjudicating Authority did not comply, stating that cross-examination would not change the facts already on record. The Tribunal found this approach to be in violation of the principles of natural justice, emphasizing that cross-examination was essential to establish the Appellants' alleged complicity.

3. Applicability of Rule 26 penalties to corporate entities:
The Tribunal noted that Rule 26 of the Central Excise Rules, 2002, which is similar to Rule 209A of the erstwhile Central Excise Rules, 1944, does not apply to corporate entities. The Tribunal cited the decision in Steel Tubes of India Ltd. v. Commissioner of Central Excise, Indore, where it was held that such provisions are not applicable to corporate entities. Consequently, the penalties imposed on M/s. Vivilon Textiles and Confidence Exports, being limited companies, were deemed illegal and improper.

4. Adherence to principles of judicial discipline and natural justice by the Adjudicating Authority:
The Tribunal criticized the Adjudicating Authority for not adhering to the principles of judicial discipline and natural justice. The Tribunal's earlier order directing cross-examination was not followed, and the Adjudicating Authority's conduct was found lacking in seriousness and proper effort to secure the presence of Riyaz Siddiqui. The Tribunal emphasized that orders from higher appellate authorities must be followed unreservedly unless suspended by a competent court, as laid down by the Supreme Court in Union of India v. Kamlakshi Finance Corporation Ltd.

Conclusion:
The Tribunal allowed the appeals of M/s. Vivilon Textiles, Confidence Exports, and Shri Harish Bulchandani, providing consequential relief, while dismissing the appeal of Suhel Roadlines due to non-cooperation and lack of representation. The penalties imposed under Rule 26 were deemed unsustainable due to the failure to grant cross-examination and the inapplicability of Rule 26 to corporate entities. The Tribunal underscored the importance of adhering to judicial discipline and natural justice in adjudication processes.

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