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TMI Blog1997 (8) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 3,50,000/- in respect of goods confiscated in the Panchnama/Recovery Memo dated 22-9-1995 under Rule 173Q of Central Excise Rules, 1944, the original order had imposed a penalty of Rs. 1 lakh under Rule 52A and Rule 173Q read with Rule 226 of Central Excise Rules, 1944. 2. The facts of the case are that on an intelligence received by deptt. that the appellants were engaged in suppression of their production and were clearing the same clandestinely without discharging the duty liability due thereon and were also storing their product unaccounted for in their statutory records; a team of officers of Central Excise, headed by Superintendent, Central Excise, Agra, visited the factory on 22-9-1995. 3. Sr. Executive Shri P.K. Datta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g balance of that day and quantity of excess excisable goods found by the officers, was the production from 18-9-1995 to 21-9-1995 and there was no production on 22-9-1995 before the arrival of the officers in the factory. 3. They have only issued the challan and the value of the excisable goods found short as per their details incorporated in the Physical Stock Verification Report dated 22-9-1995, was not given by them on the said challans and neither they have issued any bill/invoice nor they have entered the same in their RG 1 register and were cleared without payment of appropriate duty due thereon. 4. Due to ignorance of Central Excise Laws they could neither update their RG 1 register nor could they issue the Bills/Invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in respect of goods found to be short as against the recorded balance. Therefore, he held that the party directly or indirectly had admitted the contravention of the various rules with regard to non- maintenance of records and goods found to be short. Therefore, he held that their plea had not been supported by any corroboratory evidence which could show that the excess stock was the production of the dates from 18-9-1996 to 21-9-1996. He has held that as per their record the total production up to the date of seizure (265.298 m.t. approximately) shown approx. ten time less than it could have been on the pro rata basis for a period of 5 months and 18 days (approx. 140 working days) at 16.346 m.t. per day. Therefore, he has held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that of M/s. Amco Electronics v. Collector of Customs as reported in 1992 (61) E.L.T. 650. The orders are required to be set aside for having gone beyond the terms of the show cause notice. He submitted that the party has already deposited the duty for short of Rs. 58/- and does not want to contest on this. As regards excess goods found by the department and duty of Rs. 29,422.80, they had not removed the goods from the factory and the goods are still lying there. The goods had not been removed as the redemption fine was excess and the question of deposit of duty at this stage does not arise and it is required to be deposited at the time of clearance of the goods. In this regard he also pointed to the order passed by the Tribunal at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory then such goods cannot be confiscated. This judgment has been rendered in the light of the earlier judgment rendered in the case of Garden Silk Mills v. Collector of Central Excise as reported in 1991 (51) E.L.T. 373, New Polymer Industries v. Collector of Central Excise as reported in 1991 (52) E.L.T. 145, Western Transformer & Equipment v. Collector of Central Excise as reported in 1995 (9) RLT 15 and the case of Pooja Forge Pvt. Ltd. v. Collector of Central Excise as reported in 1996 (84) E.L.T. 37 (Tri.) = 1996 (64) ECR 248. The Tribunal has also considered the judgment of Southern Steel Ltd. v. Union of India as reported in 1979 (4) E.L.T. 402. The Tribunal further on examination found that penalty is imposable for non-maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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