TMI Blog1991 (6) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... minium and copper cables valued at Rs. 88,146.56 are liable for confiscation under Rule 173Q of the Central Excise Rules, 1944. Since the goods were not available for confiscation having been released to the party provisionally, he appropriated Rs. 15,000/- from the security amount. In addition to this, personal penalty of Rs. 20,000/- was imposed. Hence, this appeal. 3. We have heard Shri G.S. Bhangoo, learned Advocate for the appellants and Shri S.K. Sharma, learned J.D.R. for the respondent. 4. Shri Bhangoo submitted that the person concerned with the accountal of goods had not attended the factory for 2 days and in his absence, it could not be recorded in RG-1 Register. RG-1 Register was complete upto 6-9-1987 when the Officers visited the factory on 11-9-1987. He said that it was only a technical mistake in not entering in the register due to absence of the concerned person and there was no intention to remove the goods as the goods were found lying at various stages in the factory premises. He said that apart from the charge of not entering the goods in RG-1 Register, there is nothing to show that these goods were attempted to be removed or were in the state of being re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity of goods which were unaccounted for were liable to confiscation and the appellants were liable to penalty. The arguments that there was no intention to remove the goods as they were found lying in the factory premises was also not acceptable as the Manager of the factory himself had given an inculpatory statement dated 11-9-1987. He has not only admitted the non-accountal of the excess stock but also admitted that the goods found short were to be removed without payment of duty; And that they were using aluminium bare wire of thickness upto 3 mm only; And that they did not have wire drawing machine, and that they had been receiving wire of thickness less than 3.25 mm though the gate passes were for thickness of wire of 3.25 mm as per the charges indicated in the show cause notice and the brief facts of the case narrated in the order in original which have not been contradicted. 8. The learned counsel s argument that such a statement could not have been given by the Manager in the normal course and could only be given under duress was not acceptable as neither the statement was retracted nor any complaint regarding any duress was made nor any circumstances have been shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty on the ground of technical lapse, I find that no material has been placed before us which would go to show that the penalty imposed was disproportionately high in the circumstances of this case. 16. The value of the goods involved is Rs. 88,146.56 (the duty involved has not been indicated by either side). The learned counsel has referred to the order in original No. 53/88 said to have been passed in a simily case in which lesser penalty is said to have been imposed by the adjudicating authority. However, this contention has remained unsubstantiated. In any eventuality, as discussed above, the violation itself does not amount to a mere technical lapse in the present case. As such I see no reason to interfere with the impugned order. 17. Accordingly I confirm the same. CEGAT, NEW DELHI: In view of the difference of opinion between the Vice-President and Hon ble Member (Judicial) on the following issue, the matter is submitted to the Hon ble President for reference to a third member. Whether in the facts and circumstances of the case the quantum of penalty has to be reduced as it was held by Member (Judicial) or the same should be confirmed as it was held by Hon ble V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has satisfied himself that the said quantity of 485 mtrs. of cables were cleared on gate passes on payment of due duty. Finding of the adjudicating authority in this respect is as follows :- As regards shortage of 485 mtrs. of cables valued Rs. 7032.50 the charges as in the show cause notice are not sustainable in view of furnishing of a copy of G.P. 1 dated 9-9-1987 by the party where duty has been debited in R.G. 23-A Part II (resumed by the investigations) and on verification by the investigations found to be correct. 21. He has also pointed out that the total amount of duty involved on the quantity of cables not accounted for in the R.G. 1 is only to the extent of Rs. 13,221.98. p. As regards the statement of the Manager, Shri Ranbir Singh on which reliance appears to have been placed by the learned Vice-President, in his order, Shri G.S. Bhangoo states that the statement of Shri Ranbir Singh, even though not retracted, is full of contradictions. At one place he says that the production register did not show any production for 10th and 11th September, 1987 because there was no production received on 10-9-1987 and the production for 11-9-1987 was still to be received and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on leave. Verification Chart of the Physical stock of goods carried out by the visiting Central Excise Officers does not indicate that certain varieties of aluminium and copper cables were either shown as nil or a lesser quantity upto 6-9-1987. The production register was filled upto 9th September, 1987 and showed positive quantities of production during that period. Entry against S. No. 15 has already been pointed out by the learned advocate, Shri G.S. Bhangoo. I also notice that 694 mtrs. against S. No. 10, 600 mtrs. against S. No. 7,720 mtrs. against S. No. 3 and 504 mtrs, against S. No. 2 have been shown as production during the aforesaid three days i.e. 7th September to 9th September, 1987 in production register whereas no entry to that effect was available in the R.G. 1 Register. It is not disputed that the production register was well within the knowledge of the department. That being so once the entries had been made in the production register; there could be no occasion of not making the entries in the R.G. 1 Register. If the entries had not been made in the R.G. 1 Register this could be due to either negligence of the dealing Assistant or oversight. No mala fide as such ..... 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