TMI Blog1992 (1) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining provisional release of the seized goods. 2. The appellants were represented by Shri S.K. Bagaria, learned Counsel and Shri S.K. Poddar, learned Consultant. Shri Bagaria stated that the appellants are in transport business. In the course of their business, they had transported various types of goods from Delhi to Calcutta. Five Trucks which were used in transport of such goods were detained by the Central Excise department near Calcutta and searched. The goods were not accompanied by Gate Passes. In certain cases challans were there. The appellants had not removed any of these goods from any factory. The goods had been handed over to them in various lots by a number of persons in Delhi and booked to Calcutta. They had no knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be delivered under Gate Passes. Sub-rule 5 thereof provides that if any person carries excisable goods from a factory without a valid Gate Pass, penalty not exceeding Rs. 1000/- may be imposed. There is no provision requiring Gate Pass for goods not lifted from factory. Goods which are available in market are presumed to be duty paid, as has been clearly laid down in a number of judgments : (1) Sulekh Ram Sons v. Union of India -1978 E.L.T. (J 525) (2) Collector of Central Excise v. Decent Dyeing - 1990 (45) E.L.T. 201 (SC) (3) Calcutta Paper Mills Manufacturing Co. v. C.E.G.A.T. - 1986 (25) E.L.T. 939 (Calcutta) (4) Vapson Products v. Union of India - 1987 (27) E.L.T. 608 (Bombay) Necessarily, there has to be a link between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods and delivered the same to them. But they did not disclose the names and addresses of such persons at any earlier stage. This revealed their mala fide. The imposition of penalty is justified. He generally supported the impugned decision. 8. We have considered the arguments advanced by both the sides. We find lot of force in the contention raised by the learned Counsel that the appellants have been proceeded against by invoking provisions which are applicable to removals from factories. Here, there is no evidences led pointing to their involvement in non-payment of duty or in the transport of non-duty paid goods with knowledge of their such non-duty paid character. The case law cited during the hearing squarely support their case. In fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not their manufacturer on the grounds of clandestine removal from the factory of production, a link has to be established with the manufacturer before taking any action. The onus of proving this link is on the department and not on the petitioners. In another case decided by the Government in re: South Eastern Roadways reported in 1982 (10) E.L.T. 662, a transporter was concerned. It was held that if the fictitious consignor was only a dealer and not a manufacturer the petitioner was not expected to demand a Gate Pass for him. There was nothing to indicate that the petitioner was intentionally involved with the illicit dealing and accordingly it was held that the confiscation of goods and imposition of penalty was not justified. 9. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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