TMI Blog2021 (4) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... e any complaint. He had rather admitted the same and also in the excess stock of 56.300 MT of MS Ingots valued at ₹ 11,09,110/-. The statement of said Authorized Signatory Shri Kumar Chakraborty is perused. It shows that there is no admission for the alleged excess stock. None as his answers recorded in the statement amount to admission except that no satisfactory reason has been cited is alleged against said Shri Chakraborty. No doubt there is no retraction as in impressed upon by the Department, but once there is no admission retraction is not required. It is otherwise apparent from record that the appellant requested for the opportunity of cross-examining the witnesses the said opportunity has been denied cross examination is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral excise duty. The documents were recovered during the search and the investigating team also got stock of finished goods and raw material during the physical verification. While comparing the said physical verification report and the documents recovered with the opening stock finished goods and the raw material declared by the noticee the team noticed that 56.300 MT of MS Ingots and 221.693 MT of Iron Ore is excess/ unaccounted stock in the factory premises. Resultantly a show cause notice No. 3976 dated 3 May 2016 was served upon the appellants proposing the seized MS Ingots and the Iron Ore to be confiscated alongwith the proposal of imposition of penalty. The said proposal was initially confirmed vide order-in-original No. 20/ADJ/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 2002. The appeal has been dismissed under the wrong interpretation of the said provision. The order is accordingly prayed to be set aside. While relying upon the various case laws, as mentioned in the grounds of appeal, learned Counsel has prayed for the appeal to be allowed. 4. While rebutting these arguments, learned Departmental Representative has mentioned that in terms of Rule 10 of Excise Rules, it is the mandate that proper records shall be maintained on daily basis in a legible manner. Since the daily stock account was not maintained by the appellant, there is a define contravention of said Rule 10. In consequence whereof, Rule 25 permits confiscation and imposition of a penalty. It is impressed upon that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is again for the Department to prove. But I observe that there is no such evidence produced by the Department. Contrary there has been a decision of this Tribunal in the case of Pepsi Foods verses CCE 2002 (139) E.L.T. 658 (CEGAT), wherein it has been held that account for as has been used not only in Rule 10 of the Central Excise Rules, but also in Rule 25 thereof does not merely mean making entry in books it only means explaining the correct position of excisable goods as per law and not account which would relate to making of correct entries in accounts books. This Tribunal in another case Dhanraj Enterprises versus CCE 2006 (199) E.L.T. 518 (CESTAT SMB) has held that account for means giving explanation and not enteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Register would not invite confiscation of same or imposition of any penalty unless there is an evidence to show that goods were meant for clandestine removal . In subsequent para while relying Nilesh Steel Alloy Pvt. Ltd. versus Commissioner of Central Excise, Aurangabad 2008 (229) E.L.T. 399 (Tri. Mumbai), it has been observed that penalty should not have been imposed merely because stock of finished goods lying in factory without entry in production register was found specially there was no evidence of the clandestine removal. Such stock is observed to be not liable to confiscation in para 8.110 of the said order it is specifically recorded : 8.10 I agree with the Noticee s contention that production was on the day of visit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destine manufacture. Evidences placed on record lead to nowhere let alone the allegation of clandestine manufacture. Evidences remain to be provided to establish that such excess stock not entered in records is a deliberate act and with malafide intent to manufacture and remove excisable goods clandestinely . 8. Relying upon the case of Commissioner of Central Excise, Aurangabad versus Gal Aluminium Extrusions Pvt. Ltd. 2011 (274) E.L.T. 582 (Tri. Mumbai) it has been held in order-in-original para 8.12 that raw material is not liable to confiscation under Rule 25 of Central Excise Rules, 2002. Despite these findings surprisingly Assistant Commissioner has confirmed the proposal of confiscation of 56.300 MT of MS Ingots and 221.693 MT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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