TMI Blog1990 (11) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... ption of redemption thereof, on payment of fine in lieu of confiscation of Rs. 50,000.00. In addition, excise duty and cess amounting to Rs. 17,056.17 was demanded from them on 44,47,500 numbers Biris found short with reference to the recorded balance, in the statutory registers. A penalty of Rs. 2000.00/- was also imposed on them for violation of various provisions of the Central Excise Rules mentioned in the show cause notice. 2. In their appeal the appellants have challenged the findings of the Collector. They have mainly contended that the alleged excess quantity of labelled biris had not reached the stage of completion of manufacture as they had not been packed in marketable lots. They clear their product namely laballed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Collector. He supported the order of the Collector which he submitted was based on correct appreciation of the facts and circumstances of the case. He referred, in particular, to the fact that the irregularities in question namely the shortage of unlabelled biris and excess of labelled biris were admitted by the Managers of the appellants factories. As pointed out in the Collector s order it was only in their letter dated 28-5-1982 after 34 days of the seizure did they retract from their admissions made at the time of the seizure claiming that they were treating branded biris as manufactured for accountal in the RG-12A register after the same are packed in packages of 10,000 and 42,000 biris. For the reasons discussed by the Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tability, marketable units of packing being 10,000 and 42,000 biris. They had submitted at the time of the original proceedings that they make entries in their statutory RG-12A registers only after packing the biris in packages of 10,000 biris or 42,000 biris. This was a point which could have been got verified by the Adjudicating Authority before rejecting their plea. He has held that they failed to adduce any evidence that the jurisdictional Central Excise Officers knew the manner in which the production of the goods was being recorded. It was not for them to prove or disprove the knowledge of the officers in this regard. The goods being under physical control system the Departmental Officers had or should have had proper control on their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in marketable lots of 10,000 and 42,000 is acceptable. The packages of 10,000 biris which were found in the finishing room are stated to be the production of the date of seizure. This plea should have been considered by the Department with reference to the factual position obtaining at the time of seizure. That not having been done there is nothing to disprove the contention raised by them. In that view of the matter, the plea for setting off the alleged excess of labelled biris with the alleged shortage of unlabelled biris should not have been refused by the Collector. We are satisfied that this plea by the appellants is a correct expalanation of the actual position and we accept the same. Accordingly, duty will be recoverable on the net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perly examined by the Adjudicating Authority. It was certainly open to him to examine the same and if his scrutiny did not bear out their contentions, he could have been well within his rights to disbelieve it and come to a proper conclusion. There is no merit in his argument that the appellants had belatedly retracted from their statements of the Managers of their factories given at the time of the seizure. There is no admission in the statements of any clandestine manufacture or removal. What they had stated in their letter was their practice in making the entries in their records in terms of marketable units of packing. 8. For the foregoing reasons we allow the appeal. The appellants should, however, pay the duty on the unaccounted qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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