ORDER
Jyoti Balasundaram, Vice President
1. The appellants herein are a sugar mill who had cleared sugar for export to merchant exporters namely M/s. Yogi Exporter and M/s. Ashok Exporter on payment of duty at the time of clearance during the period from 1.9.2001 to 30.11.2001. The exporter appeared to have diverted the sugar for domestic market instead of exporting the same hence show cause notice was issued to the appellants and merchant exporters demanding additional duty as per Section 7 of the Sugar Export Permission Act, 1958 and proposing imposition of penalty”. The adjudicating authority dropped the demand of additional duty; however she imposed penalty of Rs. 5 lakhs on the appellant in addition to penalties on the exporters. The penalty on the appellant was imposed in terms of Section 25 of the Central Excise Rules, 2001. Hence this appeal.
2. We have heard both sides and perused the relevant Rule which reads as under:-
Rule 25. Confiscation and Penalty. – (1) Subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer, –
(a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or
(b) does not account for any excisable goods produced or manufactured or stored by him; or
(c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under Section 6 of the Act: or
(d) contravenes any of the provisions of these rules or the notification then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case, may he, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in Clause (a) or Clause (b) or Clause (c) or Clause (d) has been committed, or rupees ten thousand, whichever is greater.
(2) An order under Sub-rule (1) shall be issued by the Central Excise Officer, following the principles of natural justice.
3. Clauses (a), (b) and (c) of Sub-rule (1) of Rule 25 are not attracted against the appellants. The submission of the Ld. SDR that Clause (d) of Rule 25 (1) is attracted is not acceptable for the reason that the order does not disclose any intention on the part of the appellants to evade payment of duty and there is nothing on record to show that when the appellant sold the goods to merchant exporter, they knew or had reason to believe that the sugar would not be exported by the merchant exporters/buyers. We therefore, set aside the penalty and allow the appeal.
(Operative part pronounced in Court)