2018 (6) TMI 775 – CESTAT NEW DELHI – TMI – Penalty u/r 25 of CER – storage of goods outside factory premises – permission not obtained under Rule 4(4) of the Central Excise Rules, 2002 – Held that:- The imposition of penalty on the sole ground of non-observing of procedural requirement of Rule 4(4) cannot be appreciated – also, the penalty was originally imposed under section 11AC of the Act which stand already set aside by Commissioner (Appeals). As such, fresh imposition of penalty under Rule 25 of Central Excise Rules, 2002, in the absence of any evidence by the Revenue, cannot be appreciated – appeal allowed – decided in favor of appellant. – Excise Appeal No. 51006 of 2018 SM – A/52113/2018-SM[BR] – Dated:- 29-5-2018 – Ms. Archana Wadhwa, Member (Judicial) Ms. Priyanka Goel, Advocate for the Appellants Shri H C Saini, AR for the Respondent Per Ms. Archana Wadhwa: Brief facts of the case are that the appellant is engaged in manufacture of Processed Food (Amla Candy) falling under
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ect matter of present appeal. 3. The appellate authority has observed as under: 7. From the above it is abundantly clear that the appellant as per their understanding of the law adopted a procedure to send the goods to the cold storage under proper documents and received the same back under proper documents and cleared the same on payment of duty. The allegation in the show cause notice is that the appellant cleared the finished goods in bulk quantity for storage and preservation to various cold storages and the same was not processed by the cold storages except storage and preservation for time being on rental basis without obtaining permission under Rule 4(4) of the Central Excise Rules, 2002. I have seen the copies of declarations filed by the appellant on 12.03.2012 with the Jurisdictional Divisional Officer and I find that the appellant has declared that they have appointed the cold storage to undertake job work/ preservation/ processing of their inputs namely Amla candy falling u
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Central Excise Rules, 2002. 10. As already discussed above, I find that the appellant is liable to penalty for not obtaining permission under Rule 4(4) of the Central Excise Rules, 2002. However, it has also been found that the appellant cannot be charged with the act of clandestine removal of any goods by reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of the Central Excise Act, 1944 or of the Rules made thereunder with intent to evade payment of duty. Hence, the charges of clandestine removal of goods are not sustainable. Thus, the provisions of Section 11 AC of the Central Excise Act, 1944 are not applicable in this case. Accordingly, penalty in this case is imposable under Rule 25 of the Central Excise Rules, 2002. In this regard, I place reliance on the decision of Hon ble Tribunal in the case of Weldon Cello Plast Ltd. vs CCE Delhi-IV [2013(287)ELT0141] and Shivam Pressings vs CCE Pune-I [2015(326)ELT 351 (
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