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TMI Blog2017 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... of the manufactured goods under the guise of trading activity - there is element of collusion by these three trading firms with SMTPL with intent to evade duty - The appellants having confessed to handing over of the challans and also to the fact that they were in fact aware of the clandestine removal of the goods by the said SMTPL, we have to uphold the findings that all the three appellants herein are aware of the act that M/s SMTPL is going to remove the excisable goods clandestinely - all the three appellants are liable for imposition of penalty under Rule 26 of the Central Excise Rules 2002, the quantum of penalty reduced to ₹ 5,00,000/- each. As regards penalty imposed on Dhiran Transport Corporation, there is no rebuttal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/694/2011 Somakanth Multi Tech Pvt Ltd None 3. E/743/2011 Sudhir Kothari, Prop Metal Marketing Agency Mr. Y. Sreenivasa Reddy 4. E/744/2011 Dilip Kothari, Prop Metal Udyog Mr. Y. Sreenivasa Reddy 5. E/904/2011 Ajay Vyas, Prop Narayan Metals Mr. V.S. Sudhir 6. E/1110/2011 Dhiran Transport Corpn Ms. Spoorthy 3. The relevant facts that arise for consideration after filtering out unneces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. Both the appellants have sent a letter seeking adjournment of the matter on the ground that the advocate is busy. We find that these matters are coming up for disposal regularly before the Bench and are of 2011. Despite so many times the matters were listed for disposal, the appellants sought adjournment on some pretext or other which was extended. It seems that both the appellants are not serious in prosecuting the appeals. Hence their appeals are dismissed for non-prosecution. 5. The learned counsel appearing for Mr Sudhir Kothari and Dilip Kothari submit that penalties have been imposed on these two persons under provisions of Rule 26 of the Central Excise Rules 2002. It is his submission that the imposition of penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge that the goods are liable for confiscation. He would submit that the Hon'ble High Court of Bombay in the case of CCE Vs Ramesh Kumar Rajendra Kumar Co [2015(325)ELT 506(Bom)] has held that for imposition of penalty under Rule 209 A of the erstwhile Central Excise Rules 1944 requires that the person should have acquired possession of any excisable goods with knowledge or belief that the goods are liable for confiscation under the Act or the Rules. He would submit that the impugned order be set aside. 7. As regards the appellant Dhiran Transport Corporation Ms Spoorthi sought adjournment on the ground that her senior is busy. Since we have taken up and are disposing of all the appeals, adjournment request is rejected and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the submission of the learned counsel for these appellants that there is no proposal for confiscation of the goods in the notice and they have not acquired the possession of the said goods in any way to impose penalty on them under Rule 26. For this proposition they were relying upon the larger bench decision of the Tribunal in the case of Steel Tube of India Ltd (supra) and the judgement of the Hon'ble High Court in the case of Ramesh Kumar Rajendra Kumar Co (supra). 7. We find that the Larger Bench of the Tribunal in the case of Steel Tubes of India Ltd has only interpreted provisions of Rule 209A which is parimateria to Rule 26 in respect of the phrases in the said rule any person who acquires possession the said larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only) each. The appeals of the appellants are disposed of with the modifications as mentioned herein above. 8. As regards penalty imposed on Dhiran Transport Corporation, we find that there is no rebuttal to the adjudicating authority's findings that the said Dhiran Transport Corporation had not issued any LRs for the transport of the goods clandestinely removed from SMTPL premises but have issued unauthorised unsigned slips, due to which it could not be said that the said Dhiran Transport Corporation was not aware of the unauthorised removal of the goods from SMTPL's premises. In our considered view, the penalty imposed under Rule 26 on Dhiran Transport Corporation is correct. However the penalty imposed seems to be excessive in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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