Case Law Details
Rakesh Kumar Tibra Vs Commissioner of Central Goods (CESTAT Delhi)
In view of the Final Order of this Tribunal dated 3.5.2019, in the case of Lucky Tobacco Co. Ltd. and Others, arising from the same impugned order-in-original, we find that the cause of action against these appellants also does not survive. In this view of the matter, we set aside the impugned order-in-original against these appellants also and also set aside the penalty against all these appellants. Thus, the appeals are allowed with consequential benefits.
FULL TEXT OF THE CESTAT DELHI ORDER
These appeals are against the common order-in-original No.62/2018-CE dated 25.05.2018. Duty along with penalty and interest was demanded from M/s. Lucky Tobacco Co. Pvt. Ltd., who are manufacturers of filter and non-filter cigarettes located at New Industrial Area, Mandideep, District-Raisen (M.P.).
2. These four appellants are petty distributors / sub-distributors of cigarettes, pan masala and other similar products of various small brands including Lucky Tobacco Co. Pvt. Ltd. Penalty of Rs.2 lakh each under Rule 26 of Central Excise Rules, 2002 was imposed on these appellants on the findings that these appellants are engaged in purchasing of cigarettes manufactured and clandestinely cleared by Lucky Tobacco Co. Pvt. Ltd. Further, it was observed that these appellants have accepted the fact of receipt of clandestinely cleared goods in their statements recorded during investigation. Thus, it was held that they have abetted clandestine clearance of cigarettes by Lucky Tobacco Co. Pvt. Ltd. and accordingly, for alleged offence of acquiring possession, keeping, storing, concealing, selling and purchasing of non-duty paid cigarettes, penalty of Rs.2 lakh was imposed.
3. Counsel pointed out that this Tribunal in the appeal of Lucky Tobacco Co. Pvt. Ltd. – Excise Appeal No.52716 of 2018 and others vide Final Order No.50617-50623/2019 dated 3.05.2019 have allowed the appeals by observing as follows:-
“48. We, therefore, hold that there is no evidence to establish manufacture and clandestine removal of alleged quantities by LTCPL on the basis of which demand of Rs.657,50,888/- could sustain. Impugned order is therefore set aside. Consequently, the penalties imposed upon the LTCPL and other appellants are also set aside.
49. Thus, all appeals are allowed with consequential benefits.”
It is further urged that as the allegation of clandestine clearance by Lucky Tobacco Co. Pvt. Ltd. has been found to be unsustainable by this Tribunal, thus, the penalty on these co-appellant under Rule 26 is also fit to be set aside, in the interest of justice.
4. Ld. Authorised Representative relies on the impugned order.
5. Having considered the rival contentions, in view of the Final Order of this Tribunal dated 3.5.2019, in the case of Lucky Tobacco Co. Ltd. and Others, arising from the same impugned order-in-original, we find that the cause of action against these appellants also does not survive. In this view of the matter, we set aside the impugned order-in-original against these appellants also and also set aside the penalty against all these appellants. Thus, the appeals are allowed with consequential benefits.
(Operative part of the order pronounced in open Court).
