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TMI Blog2021 (3) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... ntelligence gathered that two persons were evading central excise duty by way of clandestine removal of filter cigarettes. Acting on the said intelligence, the officers of DGCEI detained a consignment of100 bags at New Delhi Railway station, New Delhi. The printing on packets showed that the same were manufactured by these two persons. In the follow up action on the same day by the officers of the Ludhiana Regional unit of DGCEI, it was found that all records maintained by the two persons and both the units were under physical control. However, during the investigation at the Railway Parcel Booking office at New Delhi, it was found that the consignment had been booked for Bhubaneswar and purportedly the consignment had originated from the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by his employees, the same was stated to be as pan masala. He further stated that such types of consignments were also booked at earlier instances as he was receiving Rs. 100 per bag in cash, over and above the freight in lieu of booking and he was not maintaining any records. He also stated the consignment was booked for Bhubaneswar. Further the details of detained goods by DGCEI, New Delhi on 20.1.2014 and taken over by the preventive staff of Central Excise Division, Jalandhar on 9.5.2014 is tabled below:- S.No. Name of the party Brand Quality Value based on MRP (in Rs.) Central Excise Duty involved (in Rs.) 1 2 3 4 5 6 1 M/s. Karsh Enterprises, Ludhiana Road, Nakodar Eleven 10 ((69 mm) 56 bags i.e.(small p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, penalty under Rule 26 of Central Excise Rules, 2002 cannot be imposed on the appellant. Therefore, he prays that as the proceedings against the manufacturers themselves have been dropped, therefore, no penalty is imposable on the appellant. 6. On the other hand, ld. AR opposed the contention of the appellant and submits that the appellant is not registered booking agent with Indian Railway, the activities performed are akin to that of Railway Porter except the porter, who are engaged in carrying passenger luggage and required to be registered. The appellant engages some workers to help in unloading and carriage of goods within the station premises, The customer engaged him for assistance in booking as well as transportation of consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Haryana High Court in the case of Deepak Roadways-2010 (254) ELT 26 (P&H). He also relied on the decision of this Tribunal in the case of Devi Dass Garg vs. CCE, Delhi-2010 (257) ELT 289 (Tri.- Del.) and the decision of Hon'ble Madras High Court in the case Lawn Textile Mills Pvt. Ltd. vs. CESTAT, Chennai-2018 (362) ELT 559 (Mad.) 8. Heard the parties and considered the submissions. 9. The issue for consideration before me is that whether the penalty can be imposed under Rule 26 of Central Excise Rules, 2002 in the facts and circumstances of the case or not? 10. For better appreciation, Rule 26 of Central Excise Rules, 2002 is reproduced below:- "Penalty RULE 26. for certain offences. - [(1)] Any person who acquires possession of, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow about the description of the goods or duty paying character of the goods. In the absence of such element of knowledge, provisions of Rule 26 of the Rules cannot be attracted in the facts and circumstances. 12. In these terms, without establishing knowledge of the appellant about the character of non payment of duty and description of the goods, penalty under Rule 26 of Central Excise Rules, 2002 is not imposable. Further, I find that the manufacturers, who were implicated in the case and the show cause notices have been issued have already be exonerated. 13. In that circumstance, I hold that the impugned order quo imposing penalty on the appellant is set aside and the appeal is allowed with consequential relief. (pronounced in the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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