TMI Blog2016 (12) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) TMI 1726 - CESTAT AHMEDABAD] the Tribunal held that if goods are not available, the same cannot be confiscated. In the instant case, the goods were provisionally released and appellant cleared them by paying duty. Therefore, I hold that the confiscation and the imposition of redemption fine is without any legal basis and therefore, liable to be set aside. The statement of Shri Shiva Kanth shows that the appellant was indulging in clandestine removal of goods. This evidence together with the admitted fact that the appellant had not accounted the stock of Cefrozil and Cefdinir in the RG 1 register, would attract the provisions under Rule 26 of Central Excise Rules, 2002. However, in this regard the penalty of ₹ 10,00,000/- imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said goods. 2. It is the case of the department that during the search several incriminating documents were found which would establish that the appellant cleared goods clandestinely. On the basis of excess goods found, records recovered and statement recorded, a show cause notice dated 11-06-2008 was issued to the appellant to explain as to why the seized goods should not be confiscated under Rule 25 of Central Excise Rules, 2002 and why penalty should not be imposed on Managing Director of the company. After adjudication, the Original Authority ordered confiscation of 800 Kgs of Cefpodoxime Proxetil, 1.1 kgs of Cefrozil and 100 kgs of Cefdinir, and as the goods were not physically available for confiscation, the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atches and only after testing they are entered and accounted in the RG 1 register. He submitted that on 19-12-2007, at the time of search only 200 kgs of Cefpodoxime Proxetil had completed testing. The department has taken the entries made against both days (19/12 and 20/12 ) and concluded that there is an excess stock of 800 kgs. He submitted that the appellant had properly accounted finished products(Cefpodoxime Proxetil) and therefore, there was no violation of Rule 10 of Central Excise Rules, 2002 in respect of this product. He therefore, prayed to set aside the redemption fine and the penalties imposed. In regard to the other items found in excess, the Ld. Counsel submitted that it was only violation of Rule 10 of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (in Kg) Value (in Rs.) Cefpodoxime Proxeti 1 801 800 1,16,80,000/- Cefrozil 1.5 2.6 1.1 24,000/- Cefdinir Nil 100 100 26,50,000/- Total 1,43,54,000/- 7. The appellant has not put forward much defence with regard to the non-accountal of Cifrozil and Cefdinir found in excess as per the table above. The entire argument putforth by the learned counsel was regarding the allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .s on 20-12-2007. The closing balance on 14-12-2007 was 1kg. Therefore, the closing balance as on 20-12-2007 is shown as 801 kgs as there was no clearances on these days. When the department alleges that they found and seized 800 kgs. of Cefpodoxime Proxetil on 19-12-2007 which was not accounted in the RG 1 register, I am not able to understand how the same quantity (of 800 kgs)is seen entered in RG 1 register split up in two days. It is also to be mentioned that the department has made remarks in the end column bracketing the closing figures 201, 401, 601 and 801 kgs. It is stated in the remarks column after the bracket that this product seized by DGCEI on 19th for non inclusion in RG 1 . The entries shown in RG-1 register for 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were not available for confiscation. The confiscation is ordered on the presumption that appellant would have removed the goods without payment of duty. In fact, the appellant has paid duty on the goods as per the duty determined. In the case of Quippo energy Pvt.Ltd. Vs CCE ST,Ahmd. -2016(331)ELT-617(Tri.Ahmd) the Tribunal held that if goods are not available, the same cannot be confiscated. In the instant case, the goods were provisionally released and appellant cleared them by paying duty. Therefore, I hold that the confiscation and the imposition of redemption fine is without any legal basis and therefore, liable to be set aside. 10. The statement of Shri Shiva Kanth shows that the appellant was indulging in clandestine remova ..... X X X X Extracts X X X X X X X X Extracts X X X X
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