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2020 (1) TMI 669 - AT - Central ExciseClandestine removal - Copper Ingots - In the case of M/s Shivam Metal and M/s Vasudev Udyog and in case of Mayank Metal goods were removed from the factory and they were en-route to M/s Sandeep Manufacturing Strips. Goods confiscated and duty demanded in respect of M/s Mayank Metal - HELD THAT:- In case of M/s Mayank Metal it was proposed that the goods which were removed from the factory and wereen-route to M/s Sandeep Manufacturing Strips were proposed to be confiscated. It was also stated that duty of ₹ 84,046/- was paid on the said goods and the said amount was proposed to be appropriated - From the pleadings and on perusal of record, it is noted that the said duty was paid by the appellant during the normal course of business and the goods were also reflected in their ER-1 return. The said return was also filed before the issuance of said show cause notice - Once the goods are reflected in ER-1 return and duty liability on the same has been accepted then even if the duty is not paid on the due date the recourse available with revenue is to resort to provision of Section 11 of Central Excise Act, 1944 and recover duty with interest and such goods do not become contravening goods and there is no provision in Central Excise Law to confiscate the goods which are not contravening goods - the impugned order in so far as the same is in respect of M/s Mayank Metal is set aside. Goods confiscated and duty demanded in respect of M/s Shivam Metal and M/s Vasudev Udyog - HELD THAT:- All the goods which were confiscated were still within the factory and they had not been cleared from the factory. In case some goods are found in the factory which are in excess of the book balance then the provisions are that the manufacture is made to record the excess finished goods in his RG-1 register so that the goods suffer Central Excise duty on clearance. When the goods have not been removed from the factory without payment of duty they do not become contravening goods and the same are not liable for confiscation - The Original Adjudicating Authority should have directed the appellant to record the excess found finished goods in RG-1 register so that they suffer duty on their clearance. The goods were in the present case still within the factory and therefore, they were not liable for confiscation. Therefore, the impugned order in respect of goods belonging to M/s Shivam Udyog and Vasudev Udyog is set aside with directions to the respective appellants to record the said goods in their RG-1 register & if already recorded in RG-1 register & cleared as payment of appropriate Central Excise duty then no action to be taken. In case of M/s Vasudev Udyog raw materials were also confiscated. Central Excise Act deals with the manufacture and so long as the goods are not manufactured the Central Excise duty is not due on the same.The authorities under Central Excise Act do not have power to seize and confiscate the raw material. Therefore, confiscation of raw material belonging to M/s Vasudev Udyog is also set aside. Appeal allowed - decided in favor of appellant.
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