TMI Blog2004 (6) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... cess quantity of 2009.7 kg. of laminated rolls (finished goods) and a shortage of 7370 kgs. of PET films (inputs); that the Deputy Commissioner under Order-in-Original No. 68/2002 dated 13.1.03 demanded duty of ₹ 1,00,232 on the shortage of inputs, confiscated the finished goods found in excess with an option to redeem the same on fine of ₹ 50,000 and imposed a penalty of ₹ 1,00,232; that the Commissioner (Appeals) has confirmed the Order-in-original and has only reduced the penalty to ₹ 50,000. He further submitted that the finished goods are not liable for confiscation as it was the production of the day, the officers had visited the factory premises and was to be entered in the statutory records only at the end of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that too without substantiating it; that similarly in respect of inputs which according to them were lying on the shop floor of the factory, the same was not shown to the visiting Central Excise Officers; that this plea is also nothing but an after thought. He, therefore, contended that duty has been rightly confirmed and goods have been rightly confiscated and penalty is imposable. 4. We have considered the submissions of both the sides. We do not find any force in the submissions of the learned Consultant that the finished goods found in excess was the production of the same date. On query from the Bench, the learned Consultant neither gave the time of visit of the Central Excise Officer of the factory on 28.6.2001 nor could he furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held by the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India, 1999 (66) ECC 40 (SC): 1999 (112) ELT 772 (SC) that apart from the offending goods which are liable to confiscation, the person concerned with that, shall be liable to penalty upto the amount specified in the Rule. It is difficult to accept the arguments of the appellant that levy of penalty is discretionary. It is only the amount of penalty which is discretionary. Both things are necessary:- (1) goods are liable to confiscation, (2) person concerned is liable to penalty. 6. We, therefore, hold that merely because they had paid the entire amount of duty on the inputs found short, does not absolve them from their liability to penalty. The penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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