K. Sankararaman, Member (T) - (1.) M/s. Inland Road Service have filed this appeal against the order dated 5-2-1990 passed by the Collector of Central Excise, Calcutta II imposing a penalty of Rs. 1,00,000/- (Rupees one lakh) on them under Rule 209A of the Central Excise Rules, 1944 and attaching, in lieu of redemption fine, the amount had been deposited by them for 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 knowledge as to whether such goods are excisable or not and whether any excise duty had been paid thereon or not. They contacted the parties concerned and were able to obtain Gate Passes for some goods and those had been released. For others where they did not get such documents they had to apply for provisional release by making cash deposit. This is the deposit which had been attached in terms of the impugned order in lieu of redemption fine. Shri Bagaria submitted that the Collector has taken the stand that they had deliberately booked the goods with fictitious names and without address of consignors and consignees. They had secured provisional release of the goods and handed over the goods to the owners. They could not have done so unless they knew the names and addresses. On this basis, the Collector has imposed penalty on them. They had brought to his notice during the adjudication process that two other transporters who had been-proceeded against similarly had been found to be not guilty and the cases had been dropped by the Additional Collector and Deputy Collector of the same Collectorate. The Collector has not referred to this submission of theirs in his order and has also not distinguished the present case from the said cases.
(3.) IT was pointed out by the learned Counsel that different Rules like 9(1), 52A, 173F, 173G, 173Q and 209A had been cited. Actually, these Rules relate to a manufacturer and removals/clearances from factories. Rule 52A requires that goods should 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 (2) 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 the goods and the manufacturer or factory and duty liability should be on the manufacturer. Here, the appellants have been proceeded against only on the ground that that provisional release had been applied for by them. An act, subsequent to the seizure cannot be the basis for confiscation.;