Gajanan Road Lines Versus CCT Hyderabad GST
Central Excise
2018 (9) TMI 451 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 4-9-2018
Appeal No. E/31285/2017 – Final Order No. A/31083/2018
Central Excise
Hon'ble Mr. M. V. Ravindran, Member ( Judicial )
Shri Nagesh V. Rao, Consultant for the Appellant
Shri Dass Thavanam, Superintendent /AR for the Respondent
ORDER
[ Order Per : M. V. Ravindran ]
1. This appeal is directed against Orders-in-Appeal No. HYD-EXCUSMD- AP2-0011-17-18-CE and HYD-EXCUS-MD-AP2-0012-17-18-CE, dated 14.08.2017.
2. The relevant facts arise for consideration, after filtering out unnecessary details are the appellant herein is the transporter and he has various premises wherein he collects goods from various consignors and despatch the same to the consignees. The premises of the appellant was searched and found that there were eight truck loads of fans packed in cartons apart from the stocks, consignment notes were issued for the said
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
cating authority after due process of law held that the goods are liable for confiscation and confirmed the demand of Rs. 17,11,090/- including Ed. Cess and Higher Education Cess and imposed a penalty on the manufacturers and other individuals plus imposed penalty of Rs. 10,00,000/- on the appellant herein. An appeal was filed before the first appellate authority resulted in upholding the Order-in-Original. The said impugned order is contested before the Tribunal.
3. Ld. Consultant, after giving an overall picture of the issue involved submits that imposition of penalty under rule 26 of Central Excise Rules 2002 is incorrect. It is his submission that transporter is not the manufacturer of the brands of fans found loaded in the truck and no investigation was done to find out the manufacturers of the said goods supposedly cleared without payment of duty. It is his further submission that unless the goods are manufactured, liability of duty and imposition of penalty under rule 26 will n
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
004(170)ELT 574 (Tri.-Mum.)]
h) Nirmal Transporters vs. CCE, Pune-II [2014(312)ELT 803 (Tri.-Mum.)]
4. Ld. DR on the other hand submits that appellant was unable to produce any documents indicating that the goods were cleared on payment of appropriate duty and in the absence of any such documents, the penalty imposed by the adjudicating authority and upheld by the first appellate authority is correct and impugned order needs to be upheld.
5. On careful consideration of the submissions made, I find that there is no dispute as to the fact that fully manufactured fans packed in cartons were found in the godown premises of the appellant, consignment notes were issued for the consignments loaded in the trucks mentioning the name and the destination, appellant could not produce any invoice, way bills issued by the consignors or the manufacturers covering the material. Despite given an opportunity to produce the documents which would indicate that appropriate central excise duty has bee
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
le to a penalty not exceeding the duty on such goods or two thousand rupees, whichever is higher:
Provided that …… (proviso inserted wef 01.03.2016 by notification No. 8/2016- CE(NT), hence inapplicable to instant case) (2) Any person, who issues
(i) an excise duty invoice…..'; or
(ii) any other document ……., shall be liable to a penalty not exceeding the amount of such benefit or five thousand rulees, whichever is higher.” [emphasis supplied]
6. It can be seen from the above reproduced provisions that the same would apply directly in the case in hand, as appellant is the person who acquired the possession of goods and were concerned with depositing or keeping the fans on which admittedly duty liability was not discharged. In my view, appellant has no case for praying for setting aside the penalties imposed under rule 26.
7. It is to be seen from the records that the duty liability on the entire stock which were seized and confiscated is only Rs. 17,11,090/- while
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =