TMI Blog1984 (9) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... ion application along with necessary annexures. The Registry had intimated to the appellant vide letter dated 21st November, 1983 the defects in the appeal and in response to the Registry s letter the appellant had filed another appeal in Form EA-3 on the 17th December, 1983. An application for condonation of delay was also filed duly supported with an affidavit. The delay in the filing of the appeal was condoned by me vide Order No. 331/Cal./1984-2273 dated the 19th September, 1984. 2. Briefly the facts of the case are that the Superintendent of Central Excise, Ranchi and other officers visited by surprise the premises of M/s. Garden Reach Shipbuilders and Engineers Ltd., Dharwa, Ranchi on 24th June, 1982 and 25th June, 1982 and found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te pass but due to mistake, the corresponding entry in the P.L.A. could not be made, the appellant had also pleaded that in future this type of mistake will not be repeated. The learned Additional Collector in his observation stated that though there was no motive on the part of the licencee to evade payment of Central Excise duty, the appellant was careless in maintaining the records. The goods were confiscated. However, the learned Additional Collector had given an option to redeem the goods on payment of a fine of ₹ 20,000/- and a fine of ₹ 500/- was imposed for contravention of the rules. Being aggrieved from the aforesaid order the appellant has come in appeal before this Court. 3. Shri H.L. Banerjee, the learned consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case and other records maintained by the appellants, which were produced by them before the excise authorities, cannot be said to have been with intent to evade payment of excise duty. On the facts and circumstances, we do not think that imposition of penalty on the appellants is justified. It is therefore set aside. Lastly he has referred to a judgment of the Special Bench in the case of S.P. Kumria Sons v. Collector of Central Excise, Allahabad reported in 1984 ECR 1310 wherein it was held that since there was no intention on the part of the appellant to evade payment of Central Excise duty, the imposition of penalty is, therefore, not justified. He has pleaded for cancellation of the penalty and redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made an error but the same was a bona fide mistake and as soon as the appellant had discovered the error he had made payment voluntarily and had also observed that the penalty proceedings are quasi-criminal proceedings and no penalty is leviable unless the element of menu rea is established. In the instant case even the learned adjudicating authority viz., the learned Additional Collector had observed at page 4 of the Order-in-Original that there was no motive on the part of the licencee to evade payment of Central Excise duty. The Hon ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa cited above had observed in para No. 7 of the order that No penalty should be imposed for technical or venial breach of legal pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out. The learned S.D.R. has not cited any case law and he has admitted that there was no intention for the evasion of duty on the part of the appellant. In the instant case show cause notice was issued to the appellant under Rule 173Q(1) (a) (d) of the Central Excise Rules, 1944 for the contravention of rule 9(1) and rules 173F, 173G whereas the penalty has been imposed for the contravention of rule 9(1) read with rules 173F, 173G, 173Q(1) (c) (d) of the Central Excise Rules. Rule l73Q of the Central Excise Rules, 1944 is reproduced as under:- Rule 173Q,. Confiscation and penalty (1) If any manufacturer, producer or licencee of a warehouse- (a) removes any excisable goods in contravention of any of the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this sub-rule in a case falling under clause (b) thereof (whether the contravention under that clause has been committed for the second or any subsequent occasion), the officer adjudging the case under Section 33 of the Act may, in addition to the award of confiscation and penalty under sub-rule (1), direct, for reasons to be recorded in writing, the confiscation of any or all of the following belonging to such manufacturer, producer or licencee of a warehouse, namely : - (i) any land, building, plant, machinery, materials, conveyance, animal or any other thing used in connection with the manufacture, production, storage, removal or disposal of such goods, or (ii) any other excisable goods on such land, or in such building or produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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