2016 (5) TMI 994 - AT - Central Excise

Confiscation in lieu of redemption fine and imposition of penalty - raw material, semi-finished goods and finished goods available inside the premises, not fully accounted for - Small scale unit involved only in drawing of copper wire, claiming small scale exemption under Notification No. 8/2003-CE dated 01/3/2003 - Held that - before seizure it is necessary to have a prima facie opinion regarding dutiable nature of the goods. The appellant was not registered with the Department. The point of their liability to Central Excise duty has not yet been established. Further, it is not clear as to which of the private records recovered were scrutinized and compared with the physical stock of various goods seized after the search of the premises. As such, it would appeared that the confiscation of the goods without even ascertaining the dutiable nature of the goods is not sustainable. Since the penalty followed on such confiscation, the same also cannot be sustained. - Decided in favour of appellant

Issues:
- Appeal against order of Commissioner (Appeals) dated 03/05/2013 regarding confiscation of goods and imposition of penalty under Central Excise Rules, 2002.
- Claim of small scale exemption under Notification No. 8/2003-CE dated 01/3/2003.
- Allegation of unaccounted finished goods during physical verifications in August 2011.
- Confiscation of finished goods, semi-finished goods, and raw materials valued at specific amounts.
- Reduction of penalty by Commissioner (Appeals) in impugned order.
- Legality of seizure and confiscation of finished goods.
- Requirement for excisable goods manufacturers to maintain proper records.
- Prima facie opinion on dutiable nature of seized goods.
- Registration status of the appellant with the Department.
- Scrutiny of private records recovered during search.

Analysis:

The appeal was filed against the order of the Commissioner (Appeals) dated 03/05/2013, where the appellants, engaged in the manufacture of Copper Wire, were found to have unaccounted finished goods during physical verifications in August 2011. The Original Authority had ordered the confiscation of finished goods, semi-finished goods, and raw materials with specific valuations and imposed penalties under Rule 26 of the Central Excise Rules, 2002. On appeal, the Commissioner (Appeals) upheld the confiscation of finished goods with a reduced redemption fine and penalty. The appellant contested the seizure and confiscation of finished goods, claiming they were a small scale unit under the SSI exemption and had maintained hand-written records. The appellant argued that no excise duty liability was established for the finished goods, making the confiscation legally unsustainable.

During the hearing, the appellant's counsel emphasized their small scale unit status and the absence of separate clerical staff for maintaining elaborate records. The appellant maintained consolidated accounts and filed regular VAT and IT returns reflecting their turnover. The Authorized Representative (AR) opposed the appellant's submissions, stating that manufacturers of excisable goods, like the appellant, are required to maintain proper records, especially for finished goods. The AR supported the lower Authority's decision for confiscation and penalty due to the lack of adequate records by the appellant.

After hearing both sides and examining the appeal records, the Tribunal found that the appellant, not registered with the Department, claimed to be within the small scale exemption limit. No finding was made on the excise duty liability of the seized finished goods. The Tribunal noted the necessity for a prima facie opinion on the dutiable nature of goods before seizure and highlighted the lack of clarity on which private records were scrutinized during the search. Consequently, the Tribunal concluded that the confiscation of goods without establishing their dutiable nature was unsustainable. As the penalty was linked to the confiscation, it was also deemed unsustainable. Therefore, the impugned order was set aside, and the appeal was allowed.

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