TMI Blog1999 (2) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the physical stock taking of the finished goods in their factory premises on 31-7-1995. The officers found 570 tyres and 25 tubes less than the balance recorded in RG 1 register involving duty amounting to Rs. 90,965/-. The officers also noticed that the appellants had made entries in their RG 23 Part I register only upto the month of May, 1995. The officers, after checking the receipt, issue and closing balance of the inputs, found shortage in the inputs worth Rs. 12,03,661/- involving of duty Rs. 2,36,937/-. Further, it was noticed that they had availed Modvat credit of Rs. 2,01,38,023/- in respect of which receipt was not shown in RG 23 Part I Register. The appellants had also not submitted the extracts of RG 23 Part I account for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service and the new person who was appointed in late July was in the process of preparing the accounts; that, however, raw material accounts were maintained in Raw Material Store ledgers. He emphasized that the duty amounting to Rs. 3,27,902/- against shortages detected in finished goods stores and raw material stores was debited on 31-7-1995 itself in RG 23A Pt II account; that penalty could not be imposed when duty had been debited on pointing out by the department; that further since no malafide has been proved penalty is not imposable; that they pay duty in crores every month and as such there can be no malafide on their part in respect of goods/raw material found short involving duty only Rs. 3.28 lakh. He relied upon the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial and for non-maintenance and submission of RG 23A Part I register. As far as Rule 173Q is concerned, presence of mens rea is not pre-requisite for imposition of penalty in respect of the Clause (a), (b), (bb), (bbb) and (c) of Rule 173Q (1). Such a requirement is only in respect of imposition of penalty under Clause (d). In view of this legal position, the penalty is imposable even if there is no malafide intention as the appellant had removed excisable goods in contravention of the provisions of Central Excise Rules and had not utilised the inputs in the manner provided in the Rules and had not rendered proper and true account of the receipt and disposal of the inputs. However, the quantum of penalty imposable may be dependent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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