TMI Blog2004 (11) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... mption fine in respect thereof by the Commissioner (Appeals). 2.The facts are not much in dispute. On 23-9-1999, the Central Excise Officers intercepted the tempo on Bahalgarh Road, Sonepat, which was loaded with the goods 'Coated Fabrics' manufactured by the appellants. The driver of the tempo, no doubt, produced the invoices in respect of those goods, but on checking of the record of the appellants after the tempo was brought back to their factory premises, it revealed that they had neither debited the duty leviable on those goods nor entered in the RG-23 Part-II register or in the PLA account, and this fact was admitted by Shri S.B Kiran, authorised signatory of the appellants. 3.Thereafter, on carrying out physical verification of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that after the provisional release of the goods, even no confiscation of the same could be ordered and that even redemption fine also could not be fixed by the adjudicating authority. To support his contention, the learned counsel has made reference to the provisions of Chapter 17 of the Central Excise Manual and instructions of the Board's No. 8/7/59 dated 17-7-1961 as well as the ratio of the law laid down by the Bench of the Tribunal in the case of CCE, Delhi-III v. Machino Montell (I) Ltd. - 2004 (168) E.L.T. 466 (Tri. - LB) = 2004 (114) ECR 894 as well as by the Single Bench in the case of Aar Kay Indus. v. CCE, Chandigarh, 2004 (165) E.L.T. 412. 5.On the other hand, the learned JDR, has reiterated the correctness of the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods from the factory by the appellants was not under the proper invoices. There was, in fact, a clandestine removal of the goods without payment of duty by them. The invoices were merely issued in order to camouflage the removal. 7.The goods having been removed without payment of duty were certainly liable to be confiscated. The view taken by the Commissioner (Appeals) that the lapse committed by the appellants was a minor and procedural one, in not debiting the duty in the record, is wholly erroneous, in the light of the facts and circumstances, detailed above, and as such cannot be accepted. The adjudicating authority rightly ordered the confiscation of the goods. 8.Similarly, the confiscation of the excess found goods in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell (I) Ltd. supra, wherein the Larger Bench of this Tribunal has taken the view that payment of duty before the issuance of the show cause notice takes away the power of the authority to impose penalty under Section 11AC, but the same is not attracted to the case of the appellants. In the case in hand, there was initially clandestine removal of the goods by the appellants and the duty was paid by them only when they were caught by the Officers. It is not a case where they paid the duty voluntarily after realising their mistake. Similarly, the ratio of the law laid down in the case of Aar Kay Industries, supra, is not of any help to the appellants as in that case the truck loaded with the goods was standing outside the factory premises of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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