TMI Blog2005 (8) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11AC of the Central Excise Act, 1944. 2. The appellant was engaged in the manufacture of CI Castings falling under sub-heading 7325.10 of the Schedule to the Tariff Act. A team of the Central Excise Officers visited the manufacturing premises of the appellant on 30-8-2001 and on physical verification of the records, they found stock in excess and unaccounted for in daily stock register, as noted down in the panchnama, which was prepared on the spot. The verification was done in the presence of the Production Manager and authorised signatory of the appellant. It was found that the production/heat register of the party was written only up to 26-8-2001. There was no entry in the production/heat register regarding pouring of any material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or confiscation. 3. In the appeal preferred against the order of the Joint Commissioner, the Appellate Commissioner held that there was no documentary evidence or entry to explain the presence of the gear boxes in the factory on 30-8-2001 and that the explanation which was sought to be put-forth after the show cause notice that the goods were purchased under an invoice dated 30-8-2001, was an afterthought. It was further held that it was apparent from the records and the statement dated 31-8-2001 that there was no entry made in the Production/Heat Register on 28-8-2001 when the melting was claimed to be done. Heat Register/RG. 1 were written up after 22-8-2001, nor was any entry made for the finished products claimed to have been manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f opinion amongst two Members and the Hon'ble Member to whom the matter was referred, held in Paragraph 44 of the judgment, that it was a composite case of contravention of Rule 53 and Rule 173G which could attract only Clause (d) of Rule 173Q(1). It was held that this would lead to the inference that the order of confiscation and penalty was under Clause (d) of Rule 173Q(1) and that the said order, unsupported by any finding of mens rea against the party, cannot be sustained inasmuch as mens rea was sine qua non for invoking Clause (d). (b) The decision of this Tribunal in Commissioner of Central Excise, Raipur v. C.M. Re-Rollers Fabricators reported in 2004 (168) E.L.T. 506, was cited for the proposition that non-accountal of raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... register. The stand taken up by the Production Manager in his statement that raw material was poured in the furnace on 28-8-2001, was not borne out by any evidence, nor were any entries made, in the Production/Heat register regarding pouring of any material in furnace on the said date. The appellant did not satisfactorily explain the excess of the stock. Under Rule 10 of the Central Excise Rules, 2001, every assessee is required to maintain proper record on a daily basis. Therefore, there was a clear violation of Rule 10. Under Rule 25(1)(b) if the manufacturer does not account for any excisable goods produced or manufactured or stored by it, such goods would be liable to confiscation and penalty can be imposed, as stipulated in the said pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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