9911796707
TMI Blog1991 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... se of preventive patrolling on National Highway near Rajanagaram, the Supdt. of Central Excise, Rajamundry Preventive Unit intercepted a lorry No.TNM 42391 at 20.00 hrs. on 22-9-1986. The truck was found loaded with 400 CFCs of scissors brand cigarettes. Out of these 400 CFCs, 300 CFCs were covered by original gate pass No. 2402 dated 12-4-1986 and 100 CFCs were transported under photo copy of gate pass No. 2401 dated 17-9-1986. As per the transport documents, the cigarettes were consigned from I.T.C. Munger to I.T.C. godown Coimbatore. The Supdt. Rajamundry seized the entire consignment along with the lorry for violation of the provisions of Rules 9 and 52A of the Central Excise Rules. The statement of the driver was recorded and the gate pass No. 2402 and 2401 and the loading manifest and other documents were seized. The driver stated that 300 CFCs of cigarettes under GP 2402 were transhipped directly from the lorry from Munger and thereafter the 100 CFCs were loaded from the transport godown in Ichhapuram. The statement of the Manager of the Road Transport Corporation and the owner of the lorry were also recorded. The 400 CFCs of scissors brand cigarettes and the lorry were rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing on record to show that M/s. I.T.C. was in any way connected with the transport of these CFCs of scissor brand cigarettes with the knowledge that they are liable to confiscation under the Act. In such circumstances it was his contention that the confiscation of 100 CFCs cigarettes and imposition of penalty on the appellant M/s. I.T.C. Ltd. is not in accordance with law. 5. As far as the appellant, M/s. Road Transport Corpn. (P) Ltd. is concerned, Sri Das contended that the splitting up of the consignments at the transhipment point at Ichhapuram was done without any instructions or knowledge of M/s. I.T.C.. It was also submitted that Rule 52A(5) is a specific Rule relating to certain specific offences, whereas Rule 209A is a general Rule of general application. Sri Das therefore contended that if an offence falls within the purview of the specific provisions of Rule 52A(5), no penalty can be imposed for such an offence under Rule 209A either separately or under Rule 52A(5) read with Rule 209A. He strongly contended that a combined charge under Rule 52A(5) read with Rule 209A is not in accordance with law. Reliance was also placed on the decision of the Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge of the I.T.C.. Clearances of the cigarettes from the factory was under physical control and was always carried out under similar gate passes. Therefore, it is highly unlikely that the Company will permit or encourage use of photo copies of gate passes. Since the break-up was done without the knowledge of the Company, it cannot be said that they had any knowledge with respect to this transport. Under Rule 209A of the Central Excise Rules, 1944, any person who is concerned in the transporting of any excisable goods which he knows or has reason to believe are liable to confiscation shall be liable to penalty not exceeding three times the value of such goods or five thousand rupees, whichever is greater. In this case, there is absolutely nothing to show that M/s. I.T.C. Ltd. was in the knowledge that these goods were transported, and that they are liable for confiscation. In this connection the decision of the Supreme Court in the case of Hindustan Steel Ltd. is applicable to the facts of this case. The learned advocate, Sri Das placed reliance on the decision of the Tribunal, Special Bench, Delhi in the case of M/s. Road Transport Corpn. and M/s. Indian Tobacco Co. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y established by the production of gate passes which contain the serial number of the goods cleared on payment of duty from their factory which is further corroborated by the copies of the assessment document AR 1 produced by the appellants. Further, in respect of a unit under physical control like that of appellants I.T.C., the burden of proving clandestine removal rests very much on the department which in this case the department has failed to discharge with satisfactory material evidence. On this point, the observations made by this Tribunal in the case of Leather Commercial Industries Ltd. v. CCE, Calcutta, reported in 1984 (15) E.L.T. 451 to the effect that is difficult to believe that that a unit under Physical Control could effect the clandestine clearance over a period without such violations being noticed by the Central Excise officers in charge of the factory are relevant. The said decisions (order was followed by this Tribunal in the case of M/s. Road Transport Corporation and M/s. I.T.C. v. Collector of Central Excise, Meerut, Order No. 192 and 193 of 1986-NRB dated 25-4-1986). Relying upon the said decisions of this Tribunal and the reasoning given therein, I hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 209A is not justified. But they were also charged in the show cause notice for violation of Rule 52A(5) and Rule 209. In such circumstances, they can be imposed with penalty only under Rule 52A(5). In both the cases which were relied on by the learned advocate, Sri Das, which was considered by the Tribunal, the Tribunal also had held that the Transport Corporation was liable for penalty under Rule 52A(5). In the above cited decisions, the Tribunal held that it is not possible to accept the defence of Transport Corporation that the mixing up was done in view of the illiteracy of the labourers. The decision of the Supreme Court reported in 1978 (2) E.L.T. J159 - Hindusthan Steel is not applicable to the facts of the case as the contravention alleged is not a technical one or a trivial one as held by their Lordships. Taking into consideration these facts, we hereby modify the order of imposition of penalty on M/s. Road Transport Corporation (P) Ltd. by imposing a penalty of Rs. 500/- (Rupees Five hundred only) under Rule 52A(5). The penalty imposed on them under Rule 209A to the extent of Rs. 25,000/- is hereby set aside. 13. In the result, the appeal filed by M/s. I.T.C. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
