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2006 (3) TMI 734 - AT - Central ExciseDemand of duty - Seizure of cash vans - Mis-declared the goods under Ch. Heading 8703 and Chapter Heading 8707 - Interest - confiscation - Penalty - activity of fabrication of bodies for and on vehicle chassis - HELD THAT:- The appellants relied upon the fact that the confiscation of vehicle being ordered by the present order of confiscation without notice to the owners of the vehicle was not legal nor permissible rely on the case of Veritas Exports v. Union of India [2004 (6) TMI 48 - HIGH COURT OF JUDICATURE AT BOMBAY]. We find force in this submission since both sides agree that the order in not legal and proper in law. The confiscation of vehicles, therefore, cannot be sustained. Nor they be liable to confiscation and duty demands on grounds of classification and duty demand on clubbing which is not being upheld. We cannot find any reason to impose and arrive at any such reasons to call for a penalty. The penalty under Rule 26 are also not attracted as the same are attracted only in a situation where any person who knows or has reason to believe that the goods in question dealt with him are liable to confiscation under the Central Excise Act, 1944 and since there is no proposal for confiscation of the goods and the appellants have dealt with the goods after due declaration of penalty by Central Excise Act and in a bona fide manner, penalty under Rule 26 is not attracted. Since the bar of limitation is to be upheld in favour of the appellants. Penalty liability u/s 11AC cannot be arise in the facts of this case. From the issue framed for adjudication by the learned Commissioner, it is evident that no issue for confiscation liability for any goods was framed and therefore, the present proposals in the Revenue appeal as regards to confiscation of the goods and also corrigendum issued by the Commissioner to be typographical, arithmetical mistake cannot be upheld. We find no reason to uphold the duty demand on merits and on limitation. The penalties cannot be sustained therefore, there is no question to arrive at any such liability. The confiscation of the goods, cash delivery vans as arrived at by learned Commissioner is not being upheld. In this view of the matter, the Order-in-Original of the learned Commissioner are set aside and the appeals of Nicholas D’souza Garage, Sigma Auto craft Pvt. Ltd. and Mr. Selin D’ souza are allowed and the appeal of revenue is rejected. Ordered accordingly.
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