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2005 (7) TMI 248 - AT - Central ExciseAppellate order - Demand duty - Non-accountal of goods - manufacture of Compact Discs such as Compact Discs (Audio), Compact Discs (Video) and Compact discs (ROM) also known as Computer Software - Confiscation - HELD THAT:- The seizure made by the officers of 44,661 nos. of CD was totally illegal and improper. The seizure consisted of 33,607 nos. of CD Audio and 11,054 nos. of CD Rom. While the CD Audio were taken from the stocks of 54,076 nos. of CD Audio which have already been accounted for at page 2 of the RG -1 Register, the CD ROM were taken from the stocks of 35,930 nos. of CD ROM which have already been accounted for at page 72 of the RG-1 Register. Thus the seizure of the CDs already accounted for in the records, on the ground that these have not been accounted for, is arbitary and illegal action on the part of the seizing officers. Besides, the seizure of 11,054 nos. of CD ROMs, which are non-dutiable, is totally uncalled for. On this ground alone, the Order passed by the ld. Commissioner, who upheld the Order of the lower authority, justifying the seizure made by his officers deserves to be set aside. Whereas the allegation in the Show Cause Notice, is about the non-accountal of the excess stock of goods, the ld. Commissioner, has held his Order that the assessee had cleared the goods without payment of duty as if the allegation was about shortage of goods, At more than one place, particularly in his Order, the ld. Commissioner had mentioned about the shortage of goods. This only shows total non-application of mind on the part of the ld. Commissioner, in passing his Order and on this ground alone, his Order-in-Appeal, deserves to be quashed. It is very clear that mere non-entry of the productions in the RG-1 will not bring in the liability to confiscation under provision of the Central Excise Rules if there is no corresponding material of clandestine clearance also available. Unaccounted production goes in tandem with clandestine removal and evidence of both has to be present in a given case to avoid the charge to be determined on an assumption/presumption. Applying the tab for liability to confiscation in this case under Rule 173Q(1), we find the test to be not positive. The confiscation arrived is to be not upheld & is to be set aside. In this view, when the order as regards the confiscation liability goods in question is not being upheld on merits & in law, then there in no reason to visit the other appellants with penalty under Rule 209A. Consequently, the orders are set aside & appeals allowed.
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