TMI Blog2016 (1) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against appellant No.2 for confiscation of goods. Rule 26 of the said rules also cannot be invoked for imposition of penalty in view of the fact that the goods were not liable for confiscation u/r 25 of the said rules. Appeal allowed - decided in favor of appellant. - E/55461/2013-EX [SM], E/55462/2013-EX [SM] - FINAL ORDER NO. 56443-56444/2016 - Dated:- 15-1-2016 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant : Ms. Aarthy Venkat, Advocate Present for the Respondent: Mr. G.R. Singh, D.R. ORDER These appeals are directed against the impugned order dated 18.10.2012 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Indore, upholding confiscation of seized goods and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner (Appeals) vide the impugned order has upheld the adjudication order. Hence, these present appeals are before the Tribunal. 3. Ms. Aarthy Venkat, ld. Advocate appearing for the appellant submits that the show cause notice has not been properly issued inasmuch as Rule 25 is applicable to the producer/manufacturer, registered person of the warehouse or a registered dealer. According to the ld. Advocate, since the appellant No.2 is not confirming to either of the categories mentioned in the said rule, order for confiscation of goods and for imposition of penalty is not justified, since outside the scope and Purview of the said statutory provisions. To support her stand that Rule 25 of the Rules cannot be invoked, the ld. Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Interscape Vs. Commissioner of Central Excise, Jaipur reported in 2003 (157) E.L.T. 221 (Tri. - Del.), Sunil Juneja vs. Commissioner of Central Excise, Jaipur reported in 2007 (218) E.L.T. 390 (Tri. Del.) , Lupin Laboratories Ltd. vs. Commissioner of Central Excise, Mumbai-IV reported in 2007 (207) E.L.T. 465 (Tri. Mum.) and also the judgment of Madras High Court in the case of Shakti Textiles Corporation vs. Collector of Central Excise, Madurai reported in 2000 (123) E.L.T. 222 (Mad.) . 5. I have heard the ld. Counsel for both sides and perused the records. 6. The short question involved in this appeal for consideration by the Tribunal is as to whether the goods can be confiscated and penalty can be imposed under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) or clause (c) or clause (d) has been committed, or [five thousand rupees], whichever is greater. (2) An order under sub-rule (1) shall be issued by the Central Excise Officer, following the principles of natural justice. RULE 26. Penalty for certain offences . - [(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. [(2) Any person, who issues (i) an excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 25 and the same cannot be imposed on any other person. The relevant paragraph in the said judgment is extracted herein below:- 5 . The Tribunal, however, allowed the appeals of the respondents by holding that Rule 25 does not apply fo the respondents as it was not the case of the prosecution that the respondents were producers, manufacturers, registered persons of a warehouse or registered dealers. It is pertinent to note that Rule 25(1) specifically mentions four categories of persons :- (a) producer; (b) manufacturer; (c) registered person of a warehouse; or (d) a registered dealer. These four categories of persons are also mentioned at the end of Rule 25, where the liability of penalty has been spelt out. It is, therefore, cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. It was, therefore, necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of the 173Q. This not having been done the Tribunal s finding cannot be faulted. The appeal is, accordingly, dismissed with no order as to costs. 10. The decision cited by the ld. D.R. are distinguishable from the fact of the present case inasmuch as the manufacturer M/s. Interscape (supra) was proceeded against for confiscation of goods and for imposition of penalty; whereas in the present case the proceedings have been initiated against the trader for confiscation of goods. Similarly, the decision of Lupin Laboratories cited by the ld. D.R. is not applicable to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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