TMI Blog2000 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... us SED on the goods totalling to Rs. 22,160.25. He also imposed a penalty of Rs. 2,000/- on the party. This order of the Assistant Collector was upheld by the Collector (Appeals) as per order dated 18-8-1992 in the appeal filed by the aggrieved party. The present Appeal No. E/5442/92-B is against this order of the lower appellate authority. 2.After the aforesaid seizure of goods from truck, the officers had also visited the appellants' factory on the same day and seized two generator sets and two generator-cum-pump sets which were found there without having been accounted for in statutory records. The appellants had not taken out Central Excise licence and had not observed other statutory formalities, though admittedly they had manufactured and cleared excisable goods to the tune of approximately Rs. 18 lacs during 1989-90. The officers seized the goods. Department, by show cause notice, proposed to confiscate the seized goods and impose penalty on the party. The appellants contested this matter also. The dispute was adjudicated by the Assistant Collector who ordered confiscation of the goods with option for redemption on payment of a fine of Rs. 7,000/- and also imposed a penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcises and Salt Act, 1944 (CESA) and relied on the decision of the Calcutta High Court in the case of Union of India v. Kanti Tarafdar [1997 (91) E.L.T. 51 (Cal.)]. Ld. DR further submitted that the appellants had, admittedly, no SSI registration and had also not taken out Central Excise licence for the manufacture of the goods. Only after having taken such licence could the appellants have validly availed of the exemption under the Notification. The appellants were not eligible for the benefit of exemption under the Notification at the relevant time. The appellants also had not observed other Central Excise formalities required under the Rules cited in the show cause notices. Therefore, according to learned DR, the allegation of contravention of the various provisions of law stood proved and, consequently, the appellants were liable for penalty under Rule 173Q. Ld. DR also sought to justify confiscation of the seized goods on the grounds recorded in the impugned order. In the context of submitting that the appellants were not entitled to SSI exemption, learned DR relied on the Tribunal's decision in the case of Sansui Electronics Private Limited v. CCE, New Delhi [1997 (95) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons recorded below. 7.2We have carefully examined the cited provisions of law. Section 37C of the CESA reads thus :- "SECTION 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of limitation not being tenable in respect of a notice for confiscation of goods and attendant penalty, the next question arising for our consideration is whether the confiscation of the seized goods and imposition of penalty are justifiable or not. The goods seized from the truck on 6-6-90 were accompanied by 7 invoices, all dated 5-6-90, and two G.Rs dated 6-6-90. Since the goods were removed from the factory on 6-6-90 but the invoices produced by them were dated 5-6-90, the officers suspected that the seized goods were not the original goods covered by such invoices but were a second consignment being removed from the factory under cover of invoices of the previous day. The appellants' defence in this connection is that it was their practice to raise invoices for removal of goods and then arrange for physical removal of the goods from the factory on the next day or so. This explanation was not acceptable to the Department. We note, the Department has no case that the six generators and one alternator seized from the truck did not tally with the description of the goods in the invoices dated 5-6-90 produced by the party. Department has also not been able to show whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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