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TMI Blog2002 (12) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... elligence that the appellants were manufacturing and clandestinely clearing video cassettes and TV video games and cartridges without payment of duty, Central Excise officers carried out search of their premises and also of their dealers/distributors on 12-12-91. On conducting physical stock verification of finished excisable goods and goods in respect of Modvat credit was availed, the same were found in excess or short vis-a-vis recorded balance in the statutory records. The unaccounted goods found were 7281 video cassettes involving Central Excise duty of Rs. 4,28,486.85 and the same were seized. It also revealed that the appellants had clandestinely removed without payment of duty 40,000 video cassettes involving duty of Rs. 23,54,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticees detailed in the show cause notice (who are not appellants before us) were issued show cause notices. On receipt of reply to that notice from the appellants and after hearing them, the adjudicating authority i.e. Commissioner of Central Excise, passed the impugned order. 3. We have heard both sides. So far as the confiscation of 7281 video cassettes valued at Rs. 3,64,050/- involving Central Excise duty of Rs. 4,28,486.85 is concerned, the same has been contested by the Counsel on the ground that these goods though not accounted for, in the statutory record, were still lying in the factory premises and as such no confiscation of the same could be ordered. The Counsel has further contended that only penalty under Rule 226 of the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir intention for not entering the goods in the statutory records could be safely gathered from their act and conduct that they intended to remove the goods in a clandestine manner without payment of duty. This conclusion also finds corroboration from the fact that they did not dispute the already clandestinely removal of 40,000 video cassettes involving duty of Rs. 23,31,428/-. They even deposited the duty without any objection. This circumstance goes along with to reflect their mala fide intention, to keep and then remove the excess goods lying in the factory as and when they found proper opportunity, in a clandestine manner, and thereby to evade the duty. Under these circumstances, it is difficult to hold that the provisions of Rule 173 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and this shortage was admitted by Shri Anil Kumar Sanghi, Executive Director of the appellants company as is evident from the impugned order itself. 8.However, the recovery of Modvat credit of Rs. 21,55,428/- alledgedly wrongly availed on 13062 sq.mts. of magnetic video tape, under Rule 57-I of the Rules, which were found short, has been contested by the Counsel before us. The Counsel has contended that even if it is taken that 13062 sq.mts. of magnetic video tapes were found short, still the appellants were liable to reverse the Modvat credit only to the extent to which they had availed the same in respect there-of and not at the effective rate of duty in force on the date of clearance of those inputs. According to the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntested by the Counsel before us on the ground that the same was earlier dropped by the then adjudicating authority while adjudicating this very show cause notice, vide order dated 29-12-95. The appellants only challenged some part of that order before the Tribunal and the Tribunal remanded the matter for fresh decision vide order dated 1-5-2000 in the light of the material placed on record by the appellants. The Revenue did not challenge that part of the order of the Commissioner vide which he dropped the demand of Rs. 49,027.61 and 5097.73 against the appellants. Therefore, that order had already become final. After the remand, the adjudicating authority could not confirm the same demand again which was earlier dropped against the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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