TMI Blog1986 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... as an appeal to the Tribunal. The appeal is against the order No. 102/79, dated 15-9-1979 under reference F. No. 194/133/78-CX-V(A) of the Central Board of Excise and Customs, under which the Board confirmed the order No. V(68) 15-84/Adj/77/83, dated 21-1-1978 of the Collector of Central Excise and Customs, Pune levying a penalty of Rs. 5,000/- on the appellants under Rule 173Q of the Central Excises Rules, 1944 and appropriating Rs. 5,000/- towards enforcement of the bond given by the appellants for the release of the seized goods as they were not available for confiscation. 2. On behalf of the appellants, advocate Shri Pochkhanawala submitted that they were manufacturing Barium Chloride and Barium Chloride Anhydrous falling under Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Barium Chloride was mandatory as per the requirement of I.S.I. standard. The salient features were that the purity should be 97% and it should not give alkaline reaction. These two criteria were affected on account of the self-generated deterioration due to atmospheric condition. Hence the I.S.I. had prescribed that the normal packing of the Barium Chloride should be in polythelene lined gunny bags. But the goods were packed only in polythelene bags as they were required re-processing. The appellants had maintained their production register and the goods were shown therein. The reason for keeping them outside the B.S.R. was that they were meant for re-processing. There was no intention to evade any duty. So far as the present case and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any intention. The goods were classifiable under Item No. 68 and a simplified form of production record was prescribed under Rule 173PP(9) and hence Rule 53 would not apply and the appellants were not required to maintain the R.G.I. register. In this behalf, Shri Pochkhanawala relied on the Pune Collectorate Trade Notice No. 205/75. As regards to levy of penalty, Shri Pochkhanawala submitted that the totality of the circumstances of the case should have been taken into account for such action. In this behalf, he relied on the Supreme Court s decision in the case of Gyanoba Jadev v. Collector of Central Excise, Hyderabad AIR 1974 S.C. page 76. He further submitted that the power to levy penalty should have been exercised judicially. In any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acked and the Batch Numbers were inscribed on the bags. There was no difference between the goods which were stored outside and those which were kept in the godown. The present case was one of a clear violation of Rules 53 and 173G. In this case, the penalty under Rule 173Q was justified for contravention of Rule 173G. As regards the Supreme Court s decision in the case of M/s. Hindustan Steel Ltd. the same was in the nature of the guidelines to adjudicating authorities. Besides, the criminal intention of the person was not required for levying penalty under Rule 173Q(l)(b)(c). It was only in the case of Sub-rule (d) that the guilty intention of an offender was required to be established. Shri Senthivel relied on Biharilal s case, 1983 E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. There is a great deal of force in the contention of the appellants. Since the I.S.I. prescribes a definite type of packing viz. gunny bags with polythelene liminings, it is not possible to market the goods in the condition in which these were seized by the Central Excise Officers. The month of June being the rainy season in Bombay, it is also likely that the quality of the goods had deteriorated. Though, it has been found by the Collector that there was no difference in the appearance of the seized goods with those kept in the godown, the visual inspection of the goods alone would not determine whether they are in a fully and manufactured condition. The chemical test report produced by the appellants shows that the goods were not in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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