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2015 (3) TMI 1145 - CESTAT NEW DELHI

2015 (3) TMI 1145 - CESTAT NEW DELHI - 2015 (329) E.L.T. 500 (Tri. - Del.) - Clandestine removal of the goods - raw material found in their factory and the finished goods lying in their factory unaccounted - non-maintenance of the statutory records - confiscation of goods - Held that:- After going through the show cause Notice and the impugned order the allegation against the appellant is that the goods lying in their factory are unaccounted and not entered in the statutory records since 21-7-20 .....

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BAD ) hold that in this case provisions of Rule 25 of Central Excise Rules, 2002 have not been complied with. Therefore, goods are not liable for confiscation. Consequently, redemption fine and penalty is not imposable on the appellant and penalty on Shri Harish Kumar Sharma is not imposable under Rule 26 of the Central Excise Rules, 2002. - Decided in favour of assessee - E/59512 & 59337-59338/2013-EX(SM) - Final Order Nos. A/51032-51034/2015-EX(SM)(BR) - Dated:- 20-3-2015 - Shri Ashok Jindal, .....

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pto 10-7-2010 on inputs. The inputs are raw material of 2300 kgs which was found unaccounted in their factory and finished goods of the value of ₹ 1,17,421/- was found unaccounted comprising duty of ₹ 12,094/-. After recording the statement, the goods were seized and a show cause notice was issued to allege that the inputs were lying unaccounted in their records. The appellant is liable to pay duty thereon and finished goods which were lying in their factory are also liable for confi .....

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e by encashing the bank guarantee executed at the time of release of the goods. Said order was challenged by the appellant before the ld. Commissioner (A) who confirmed the adjudication orders. Aggrieved from these orders appellants are before me. 3. The ld. Counsel for the appellant submits that in this case provisions of Rule 25(1)(B) has been invoked and as per Rule 25(1)(B) raw material cannot be confiscated. Consequently, redemption fine and penalty is not imposable. To support his con .....

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y. In fact, there was no intent by the appellant not to record the raw materials in their books and to clear the finished goods clandestinely. There was an inadvertent mistake that they are not making records regularly. Only on this basis, the case has been made out against the appellant and there is no evidence brought on record that there was an intent of the appellant to clear the goods clandestinely. Therefore, he prayed that the goods are not liable for confiscation as held by the Hon ble H .....

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d properly at the time of visit by the departmental officers on 3-8-2010. Therefore, the goods are meant for clearance clandestinely without payment of duty. In these circumstances, goods are liable for confiscation and consequently penalty is imposable. He also submits that the appellant being a private company should be more vigilant and it is required by them to maintain their record properly on daily basis as compared to departmental officers. Therefore, the arguments advanced by the ld. Cou .....

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nd in their factory and the finished goods lying in their factory unaccounted are meant for clandestine removal of the goods. On the basis of non-maintenance of the statutory records, it has been alleged that the appellant was having the intention to clear the goods clandestinely. The appellant has given an explanation that due to the illness of the concerned officer they could not maintain their regular records. After going through the decision of the Hon ble High Court of Gujarat in the case o .....

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: Since no clandestine removal and intention to evade duty has been established, and the appellants at the personal hearing held on 9-12-1999 through Advocate Shri R. Parthasharthi submitted the test report dated 26-12-1992 showing that the lab report was signed on 26-12-1992 and the stability test has been done on that day and it is only after this test is passed, the bottled would be required to be sent from manufacturing to excise department who will thereafter entering in the RG 1. The inter .....

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nable explanation and can be delivered. The finding on the same are an assumption and cannot be supported. 4. Thus it is apparent that on same set of facts and circumstances of the case on view has been adopted by the Adjudicating Authority, but on appreciating the same set of facts and evidence the Commissioner (Appeals) and the Tribunal have taken a different view of the matter. 5. Thus on appreciation of evidence if the Appellant Authorities have concurrently recorded the findings o .....

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ce that the accounts were not maintained with an intent to evade duty and it was the view of the Tribunal that this is a sample case of non-maintenance of accounts. In these circumstances, Tribunal came to the conclusion that redemption fine and penalty is not imposable. Further, I find that in the case of Mutual Mecaplast Ltd. (supra) wherein this Tribunal has observed that there is nothing on record to indicate that appellant made an attempt to remove the goods clandestinely with an intent to .....

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