TMI Blog1998 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... r or direction deemed fit. 1. The facts of the case are that the appellant has removed the excisable goods without a cover of gate pass, without accounting them in the statutory records during the period from 20-4-1992 to 1-2-1993 and without paying the Central Excise Duty. The appellant has suppressed the facts of manufacture and clearance of excisable goods and have resorted fraudulently for the clandestine removal of the same with an intent to evade the payment of Central Excise duty. On 1-2-1993, the (Preventive) branch of the Central Excise and Customs Officers of the Hdqrs., Pune intercepted a Bajaj Auto Trailor MHQ-4794 in Gultekadi Industrial Estate, Pune, driven by Bansi Gopal Bhaiyya, produced only a plain challan/memo bearing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The plane challans and memos were meant for clearance without payment of duty and another set was used for bona fide clearanaces, and delivery challan No. 18 is of the category of the plain challans, under which the goods seized along with the vehicle were cleared. During the period from 18-1-1993 to 1-2-1993, the appellant had removed 3,197.05 kgs. of copper and brass sheets and circles under the plain challan Nos. 1 to 17. They have cleared 3,498.770 kgs. of sheets and circles of copper and brass during the period from 24-4-1992 to 13-1-1993, the dutiable goods to different parties under similar challans. The private account maintained in a Note book by the appellant showed that 4,633.65 kgs. of brass/copper sheets and circles were clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure C calling upon them to show cause within 30 days from the date of the receipt of the notice as to why the Central Excise Duty amount of Rs. 33,666.76 should not be recovered from the appellant, and the goods seized should not be confiscated, and penalty should not be imposed on them, alleging contravention of Rule 52A, Rule 53 read with Rule 173G and Rule 9(1) read with Rule 173F, invoking Section 11A(1), the extended period of limitation for issuing the notice. The appellant has filed his reply on 19-7-1993. So also the other two parties. Personal hearing was fixed on 16-9-1993 and the parties were heard through their counsel. After perusal of the records and considering the whole case the present impugned order is passed by con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry in the R.G. 1 register should have been made on the next day. There are no grounds for the seizure of the goods in the factory and for confiscation and for the appropriation of the security amount. The bonds executed should have been enforced in the Civil Court and recover amount. In support of these, rulings are cited by the ld. Counsel for the appellant. The ld. JDR has submitted that Rule 173Q permits confiscation of the goods, not accounted. In the rulings the goods were accounted in R.G. 1, but there were the excess goods. 4. Perused the Show Cause Notice, reply, impugned order and the appeal memorandum, and rulings cited. From the facts narrated above, it is found that the goods are seized from the tempo, which is confiscated, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily. 1985 (20) E.L.T. 80 (Tribunal) in the case of Kellner Pharmaceuticals Ltd. v. Collector of Central Excise, Kanpur in support of the contention that in the absence of any intention to evade the payment of duty penalty cannot be imposed for technical lapses by not completing R.G. 1 Register. 1995 (78) E.L.T. 298 (Tribunal) in the case of Indian Steel Wire Product Ltd. v. Collector of Central Excise, Jamshedpur in support of the contention that excisable goods not entered into R.G. 1 register, but there was no suppression of production and clearance no intention to evade duty. Stern penalty not imposable. 1996 (82) E.L.T. 323 (Tribunal) in the case of Kamal Plywood Allied Inds. P. Ltd. v. Collector of Central Excise, Meerut in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Rules. It is held that the appropriation of the amount towards the confiscation of the goods which were released, is not in accordance with law. Proper remedy for the department is to enforce the terms of the Bond by asking the assessees to produce the goods and thereafter, to enforce Bond in terms of the stipulations set out in the Bond and without having taken recourse to that remedy the amount could not be straight way appropriated. 7. In the instant case the impugned order does not show that the appellant has called upon to produce the goods released in his favour on the Bond. The basis on which the amount is appropriated is not clear. So, as per the above ruling the direct appropriation of Rs. 50,000/- the cash secu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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