2004 (1) TMI 123 - AT - Central Excise

Summary

Issues:
1. Challenge to order-in-appeal modifying order-in-original
2. Legality of setting aside confiscation and redemption fine
3. Conversion of penalty under Rule 173Q to Rule 226
4. Application of legal principles in the case

Analysis:
1. The appeal before the Appellate Tribunal challenged the order-in-appeal modifying the order-in-original issued by the adjudicating authority. The key issue was whether the Commissioner (Appeals) had the legal authority to make such modifications.

2. The facts revealed that excess stock of polybags and unaccounted inputs were found during a physical verification at the factory premises of the respondents. The adjudicating authority had ordered confiscation of the unaccounted goods, imposed redemption fine, and a penalty of Rs. 5,000. However, the Commissioner (Appeals) set aside the confiscation and redemption fine, while upholding the penalty.

3. The Tribunal, after hearing the learned Judicial Departmental Representative (JDR), found that the impugned order of the Commissioner (Appeals) was not legally maintainable. Citing the precedent set by the Bombay High Court in Kirloskar Brothers v. Union of India, it was established that even in cases of non-accountal of goods, Rule 173Q could be invoked for confiscation without the need to prove mens rea. The Commissioner (Appeals) erred in applying different legal principles and changing the penalty under Rule 173Q to Rule 226.

4. The Tribunal emphasized that the legal principles laid down in previous cases referred by the Commissioner (Appeals) were not applicable in this scenario due to the specific judgment of the Bombay High Court. As a result, the impugned order was set aside, and the order of the adjudicating authority was restored. The appeal of the Revenue was allowed, highlighting the importance of adhering to established legal precedents in such matters.