TMI Blog2014 (6) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... was made out for imposition of penalty is not shown in any manner to be perverse - if there is no intention or suggestive of intention to remove the goods clandestinely, the same cannot be confiscated - decided in favour of assessee. - Appeal No. : E/13201,13202/2013-SM - ORDER No. A/11050 11051/2014 - Dated:- 9-6-2014 - Mr. M.V. Ravindran, J. For the Appellant : Shri Sailesh .P. Seth (Advocate) For the Respondent : Shri J. Nagori (A.R.) JUDGEMENT Per: Mr. M.V. Ravindran; These two appeals are disposed of by a common order as they arise against the same Order-in-Appeal. 2. Relevant fact that arise for consideration are M/s. Union Quality Plastics Ltd. (hereinafter referred to as main appellant ) were engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants would draw our attention to the show cause notice and the impugned orders. It is his submission that due to non-payment of installments, the main appellants factory was locked by the bank on 24.01.2011. He would submit that the factory was unsealed by the bank after payment on 02.02.2011. He would draw my attention that the officers visited the factory premises on 03.02.2011 and 04.02.2011 and it was explained that the stocks which were lying and accounted were infact manufactured prior to 24.01.2011, but due to sealing and tension the stocks remained unaccounted in the statutory records. It is his submission that there was no intention on the part of the appellant for removing the goods without payment of duty. He would rely upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute as to the fact that the factory premises of the appellant was sealed by the bank on 24.01.2011. This is very evident that the show cause notice which was issued to the appellant which records that on 25.01.2011 when the central excise officers visited the factory premises, it was locked and sealed by the bank. It is also to be noted that in the entire show cause notice, there is no allegation of any clandestine clearance of the goods by the appellant or having made preparation for clearance of such unaccounted goods or had an antecedence of clandestine removal of the goods. It is also undisputed that the factory premises of the appellant were de-sealed by the bank on 02.02.2011. 7. On the above factual matrix, it requires to be seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or the Rules made thereunder, with the intent to evade payment of duty. In the circumstances, in the absence of any such findings as contemplated under the provisions of Section 11AC of the Act and Rules 57-I(4) and 57U(6) of the Rules having been recorded by the Tribunal, the basic requirement for invocation of Rule 173Q of the Rules is not fulfilled. In the circumstances, without satisfying the basic ingredients thereof, the seized goods could not have been confiscated and consequently no redemption fine could have imposed under Rule 173Q of the Rules, nor could any penalty have been imposed thereunder. 9. Yet another case, Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mens rea is normally required to be shown for imposition of penalty. Same view was taken in The Commissioner of Income Tax, West Bengal v. Anwar Ali, reported as AIR 1970 SC 1782. 11. In the present case, the Department has failed to prove the element of mens rea for imposition of penalty. It has been so held by the Commissioner as well as the Tribunal that no case was made out to impose penalty. The finding recorded that no case was made out for imposition of penalty is not shown in any manner to be perverse. 12. In view of the above, we find no merit in this appeal and the same is accordingly dismissed. As the ratio which has been laid down by their Lordships is very clear, in as much as, if there is no intention or suggestiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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