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TMI Blog2005 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... d while in transit. The department has no case that M/s. SSKT had physically dealt with the goods in any manner whatsoever. Hence Rule 209A was not invocable against them. Appeal No. E/911/2004 is allowed. In the result, penalty on the appellant stands vacated. A redemption fine of Rs. 25,000/- has been imposed in lieu of confiscation of the tempo. It has been argued by ld. Consultant that neither the driver nor the owner of the tempo had any knowledge of the fact that goods liable to confiscation were being transported by the vehicle. It has been pointed out that the original authority recorded a finding that the driver had no knowledge of the said fact. There is also nothing on record to indicate that the owner of the vehicle was knowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Rajendran, owner of the Tempo (appellant in Appeal No. E/912/2004). In adjudication of this notice, the original authority confiscated the cotton yarn (valued at Rs. 1,16,000/-) with a redemption fine of Rs. 29,000/-, confiscated the vehicle with a redemption fine of Rs. 25,000/-, imposed a penalty of Rs. 10,672/- (equal to duty on the yarn) under Section 11AC of the Central Excise Act on M/s. LTEL and a penalty Rs. 3,000/- under Rule 209A of the Central Excise Rules, 1944 on M/s. SSKT. The first appellate authority upheld the decision of the adjudicating authority. Hence the present appeals. 2. After examining the records and hearing both sides. I find that, admittedly, the cotton yarn was cleared from the factory of M/s. LTEL without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing this argument, ld. Consultant has submitted that whether or not payment of duty was voluntary is immaterial. In this connection, he has relied on the Madras High Court's judgment in CCE, Madras v. Jkon Engineering (P) Ltd. [2005 (67) RLT 157 (Mad.)]. The following questions of law had arisen before the High Court :- 1. Whether payment of Central Excise Duty by the manufacturer of excisable goods without Registration/and observance of Central Excise Law, before issue of Notice under proviso to Section 11A of the Act would absolve him from the liability of penalty under Section 11AC of Act? 2. Whether in the facts and circumstances of the case the Appellate Tribunal was correct in sustaining the order of the Commissioner (Appeals) who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the extent of setting aside this penalty. 3. There is a penalty of Rs. 3,000/- on M/s. SSKT under Rule 209A. Under this provision of law, a penalty could be imposed on a person who acquired possession of, or otherwise physically dealt with, any excisable goods which, according to his belief or knowledge, was liable to confiscation. The above penalty is in relation to confiscation of the cotton yarn, the goods was seized while in transit. The department has no case that M/s. SSKT had physically dealt with the goods in any manner whatsoever. Hence Rule 209A was not invocable against them. Appeal No. E/911/2004 is allowed. In the result, penalty on the appellant stands vacated. 4. A redemption fine of Rs. 25,000/- has been imposed in lieu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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