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TMI Blog2025 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... cape from their responsibility to ask for invoices from their client for the goods which they used to transport. In the case of Shri Ajay S. Singhal, Shri Sandesh T Bhingrade, Shri Amrit Kumar Chauhan vs. CCE, Vapi [2013 (9) TMI 654 - CESTAT AHMEDABAD], the Tribunal held so far imposition of penalty upon Shri Amrit K. Chauhan (Transporter) is concerned, it is the case of the appellant that he was not knowing that the goods cleared clandestinely by the main party were liable to seizure and confiscation under the Central Excise law. However, it is evident from his statement recorded during the course of investigation that entries made in the note pad maintained for clandestine removals showed the transportation made by him in all such clearances. It is admitted by him that he did not know the exact address and name of concern where the ingots were delivered as he had not issued any lorry receipts. It is also accepted by him that freight charged by him from the main party was received in cash. Therefore, the conduct and act of the transporter is not free from doubt as he was not maintaining any written records like lorry receipt, register etc. so that clandestine activities done by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the appellant transporter. The statement of Shri Hemant Babulal Bhanshali, Authorized Signatory of M/s. Moonlight has also been accepted and confirmed by Shri Raj Bhahdur Singh, Manager cum overall in charge of appellant transporter in his statement dated 22.09.2012 and 10.10.2012 and he admitted that their transport Company had transported finished goods viz. S.S. Welded Pipes/ Tubes of M/s. Moonlight through token books without Central Excise invoices and no lorry receipts were prepared for the clearances of such finished goods. Shri Singh in his statement further also admitted that their transport company had transported all the goods of M/s. Moonlight without cover of Central Excise invoices and confirmed the details of all such dispatches. 2.1 After investigation, it was noticed that M/s. Moonlight has evaded total Central Excise duty of ₹ 57,52,241/- on clandestine removal of goods viz. S. S. Welded Pipes/Tubes during the period from August to September, 2012. It was also noticed that the appellant have transported the unaccounted goods under the cover of Kacha Chits/Token Books from the factory of M/s. Moonlight and Shri Raj Bhadur Singh, Manager of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Thus, the Addl. Commissioner has erroneously presumed that the appellant carrying on goods without an invoice was in the know that goods were liable to confiscation, non carrying of invoice does not lead to the presumption that goods are liable for confiscation. It is possible that the manufacturer would send invoice subsequently or that goods can be exempt from payment of duty due to value of clearance below the threshold limit. Transporters are not supposed to be experts or even fully conversant with Central Excise Law. Therefore, to presume collusion in this case has no basis and the impugned order based upon this reasoning cannot be sustained in law. 3.1 It has also been submitted by the appellant that Commissioner has neither perused nor dealt with any of the arguments made in the reply to the show cause notice or in the written submissions made in lieu of personal hearing consequently the impugned order is paid in law and is liable to be set aside. The appellant rejected the arguments advanced in reply to the show cause notice and written submissions the appellant further argued that Commissioner has without application of mind casually dismissed. The appeal without co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- whichever is greater. 5. I have carefully considered the submission made by both the sides and perused the records. The only issue required to be decided in this case is whether Rule 26 of Central Excise Rules, 2002 is attracted to impose penalty on the appellant or not. For ease of reference, Rule 26 is reproduced below:- Penalty for certain offences. RULE 26. - (1)] 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. Provided that where any proceeding for the person liable to pay duty have been concluded under clause (a) or clause (d) of sub-section (1) of section 11AC of the Act in respect of duty, interest and penalty, all proceedings in respect of penalty against other persons, if any, in the said proceedings shall also be deemed to be concluded. (Above proviso has been inserted vide Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to note that the transporter, who is engaged in transportation of excisable goods cannot escape from their responsibility to ask for invoices from their client for the goods which they used to transport. 5.2 I find that in the case of Shri Ajay S. Singhal, Shri Sandesh T Bhingrade, Shri Amrit Kumar Chauhan vs. CCE, Vapi - 2013-TIOL-1916-CESTAT-AHM, the Tribunal held so far imposition of penalty upon Shri Amrit K. Chauhan (Transporter) is concerned, it is the case of the appellant that he was not knowing that the goods cleared clandestinely by the main party were liable to seizure and confiscation under the Central Excise law. However, it is evident from his statement recorded during the course of investigation that entries made in the note pad maintained for clandestine removals showed the transportation made by him in all such clearances. It is admitted by him that he did not know the exact address and name of concern where the ingots were delivered as he had not issued any lorry receipts. It is also accepted by him that freight charged by him from the main party was received in cash. Therefore, the conduct and act of the transporter is not free from doubt as he was not maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Only, the person implicated/concerned should have the knowledge of "possible confiscation" of the impugned goods. From the facts on record, the appellant have played crucial role in commission of offence by M/s. GK Founder. The Tribunal held that appellant was liable to penalty under Rule 26 of Central Excise Rules, 2002. 5.5 In view of above legal position, it is clear that no error has been committed by the adjudicating authority and the learned Commissioner in arriving at the conclusion that the appellant was very much aware of the clandestine removal being undertaken by M/s. Moonlight Tube Industries and the plea of the appellant cannot be accepted that he was not aware of clandestine removal by the main appellant. 6. The learned Counsel for the appellant relied upon the decision in the case of Perfect Transport Co vs. CCE, Vapi - 2013 (297) ELT 248 (Tri.) in which this Tribunal held that penalty on a person can be imposed for handling the goods which he is aware to be liable to confiscation. In the present proceedings, details of the consignments transported by the appellant for M/s. Uniform Magnet Wire Industries were made available by the appellant itself in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X
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