TMI Blog2001 (11) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... se Rules and proposing confiscation of the goods and imposition of penalty on the appellant under Rule 173Q. 3.The appellants refuted the charges and stated in their reply that the production came to be not entered on a daily basis in the RG-I purely on account of administrative problems i.e. the person incharge of maintaining of RG-I Register, namely, Shri Ashok Kumar was on leave on those days. They also explained that there was no intention to manufacture goods clandestinely and clear them without payment of duty. They stated that the goods produced had actually been entered in the assessee's own private production records. It was clarified that daily production is being recorded on production slips and such productions upon transfer to store are entered on Transfer Slips. They also stated that these Transfer Slips are serially numbered records of the assessee and prepared on a daily basis and the RG-I entries are made based on the Transfer Slips. It was explained that the production for the period 1-5-1997 to 8-5-1997 had been fully entered in the Transfer Slips. They contended that the entry in Transfer Slips showed that the appellant had no intention to suppress production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect and timely maintenance of account book, register etc. i.e. Rule 226. The ld. Counsel also pointed out that the penalty contemplated in Rule 226 for such failure was only Rs. 2000/-. The appellants have relied on the decision of this Tribunal in the case of M/s. Bhillai Conductors (P) Ltd. v. CCE, Raipur [2000 (125) E.L.T. 781 (T) = 2000 (91) ECR 569] in support of their contention that when mens rea is not involved, penalty under Rule 226 alone is impossable and not actions under Rule 173Q of Central Excise Rules. 6.As against the aforesaid submissions on behalf of the appellants, the ld. JDR has maintained that the Provisions of Rule 173Q are clearly attracted in the present case. He drew our attention to sub-rule (b) of Rule 173Q which relates to "does not account for any excisable goods manufactured, produced or stored by him". The learned JDR submitted that there is no dispute in the present case that the appellants had not accounted their excisable goods in question in the excise accounts (RG-I). He also submitted that when goods are produced and not entered for several days in the excise accounts, as in the present case, the motive could be presumed to be only removal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, accompanying thereof, or takes credit of duty or money which he knows or which he has reason to believe, is not permissible under these rules, or does not utilise the inputs or capital goods in the manner provided for in these rules, or utilises credit of duty or money in respect of inputs or capital goods in contravention of any of the provisions of these rules, or does not render proper and true account of the receipt and disposal of the said inputs or capital goods and the credit of duty or money taken thereon as required under these rules, or contravenes any of the provisions contained in Section AA or AAA or AAAA of Chapter V of these rules; or (bbb) enters wilfully any wrong or incorrect particulars in the invoice issued for the excisable goods dealt by him with intent to facilitate the buyer to avail of credit of the duty of excise in respect of such goods which is not permissible under these rules; 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 with intent to evade p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absent - in view of the Tribunal's decision in the case of Bhillai Conductors Pvt. Ltd. In that case, after the examination of the various provisions of the said rule, the Tribunal observed as under :- "41. The question now is whether the appellant's case is covered by clause (b) or clause (d) of Rule 173Q(1). It is pertinent to note that if clause (d) has to be attracted by the instant case, the appellants ought to have contravened any of the provisions of the Central Excise Rules with intent to evade payment of duty. It is equally pertinent to note that a non-accountal of the goods in RG-I register, as contemplated under clause (b) of Rule 173Q(1) is nothing but a case of contravention of Rule 53 ibid. Any case of contravention of any of the Central Excise Rules (including Rule 53) can attract confiscation and penalty only where such contravention is actuated by an intent to evade payment of duty as per Clause (d) of Rule 173Q(1). It follows that any non-accountal of excisable goods in RG-I Register would attract confiscation and penalty (under Rule 173Q) only where such non-accountal is indulged in by the manufacturer with intent to evade payment of duty. This position necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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