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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 ..... ant. During the investigation it was noticed that M/s. Moonlight were engaged in manufacture and clandestine clearances of their finished goods viz S.S. Welded Pipes / Tubes without preparation of Central Excise invoices without payment of Central Excise Duty and without maintaining any Central Excise statutory records during the period from August, 2012 to September, 2012. The investigation was extended to the appellant end and it was noticed that M/s. Moonlight had illicitly cleared their finished goods through the appellant who was engaged in transport business. A statement of Shri Hemant Babulal Bhanshali, Authorized Signatory of M/s. Moonlight dated 09.10.2012 was recorded under Section 14 of Central Excise Act, 1944 wherein he admitted that they had dispatched / cleared S.S. Welded Pipes / Tubes in the open market without preparing of Central Excise invoices and without payment of Central Excise duty 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is liable for imposition of penalty under Rule 26 (1) of Central Excise Rules, 2002 and he decline to interfere in the Order-In-Original C.EX./79/DEM/ADJ/BPS-ADC/DMN/2016-17 dated 28.02.2017. Feeling aggrieved and satisfied with the Order-In-Appeal dated 28.03.2018 the present appeal has been filed before this Tribunal. 3. The learned Counsel for the appellant submitted that the conclusion arrived at by the Additional Commissioner (Appeals) in imposing penalty upon the appellant is based on assumption and presumption. It has been assumed that the appellants were aware that the goods being transported by their liable for confiscation. The basis of this assumption is that goods in question were accompanied by invoices does not ipso facto lead to the conclusion that the appellants were fully aware that the goods transported by them were official in nature and liable for confiscation. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Ahmd.) (b) CCE - Coimbatore Vs. Al Matheshwara Lorry Service 2004(171) ELT 421 (Tri.-Chennai) (c) Gagan Freight Carriers Vs. CCE - Chandigarh 2003 (151) ELT 633 (Tri.-Del.) (d) Chawla Highway Carriers Vs. CCE - Mumbai- III 2003 (161) ELT 165 (Tri.- Mumbai) (e) V-Trans (India) Limited Vs. CCE - Thane - I 2017 (352) ELT 81 (Tri.- Mumbai) 4. The learned Authorized Representative reiterated the grounds mentioned in the Order-In-Original and Order-In-Appeal. He argued that under Rule 26 of Central Excise Rules, 2002, it has been provided that any person who acquires possession of or is in any way concerned in transporting, removing, deposing, 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 Act or this Rules shall be liable to penalty not exceeding duty on such goods or Rs. 2,000/- 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 eas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llusion in this case between the manufacturer and the appellant which has no basis and the impugned order based on this reason is not sustainable. I do not agree with the learned Counsel for the appellant. In this case, the Manager of the appellant had admitted that he has dealt with the excisable goods and transported them without having Central Excise invoices. It has been admitted by the Manager that transportation of alleged goods taken place without cover of any Central Excise invoices and under the Kacha Challans. Duration of transportation is from 2011-12 and 2012-13 and on the basis of this fact, the Commissioner had arrived at the conclusion that the appellant was having full knowledge of clearances/ removal of goods without the cover of invoices which they cannot ignore. I fully agree with the conclusion arrived at by the learned Commissioner while passing the impugned order. It is pertinent 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties imposed under Rule 26 on the appellants were upheld. 5.4 Further, in the case of Steel & Metals Co., Shreeji Aluminium P. Limited, Paresh Babubhai Patel, BS Roadways and Saleem Saheb Patel vs. CCE&ST, Vapi - 2022 (6) TMI 774 -CESTAT Ahmedabad it was observed by the Tribunal that a plain reading of Rule 26 indicates that imposition of penalty therein is not tied to a condition that excisable goods have to be placed under confiscation under the Act/Rules. On the other hand what the Rule propounds is that a person who is involved either directly or indirectly by way of possession, or transporting, removing, depositing etc. or in any other manner dealing with excisable goods and who has the knowledge that consequence of such acts or omissions on his part could result in the impugned goods becoming liable for confiscation under the Act/Rules is then exposed to imposition of penalty under this Rule. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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