2004 (1) TMI 140 - AT - Central Excise

Summary

Issues:
1. Validity of the impugned order-in-appeal modifying the order-in-original
2. Confiscation of unaccounted goods, redemption fine, and penalty under Rule 226

Analysis:
1. The appeal before the Appellate Tribunal CESTAT, NEW DELHI raised concerns regarding the validity of the impugned order-in-appeal, which modified the original order by the Assistant Commissioner. The Revenue contested the decision of the Commissioner (Appeals) which set aside the confiscation of unaccounted goods, redemption fine, and converted the penalty under Rule 226 from Rule 173Q.

2. The facts revealed that the respondents, engaged in the manufacture of leaf spring, had an excess of 367 Nos. of leaf springs during a physical verification by the Central Excise Officer. Subsequently, the goods were seized, and after due process, the adjudicating authority ordered confiscation, imposed a redemption fine, and penalty under Rule 173Q. However, the Commissioner (Appeals) overturned this decision based on the Bhilai Conductors case law, setting aside the confiscation, redemption fine, and penalty under Rule 173Q, while imposing a penalty under Rule 226.

3. The Appellate Tribunal observed that the respondents' cross objections mainly relied on disputing the assumptions and presumptions made in the case, without contesting the non-accounting of goods in the statutory record. Referring to the Kirloskar Brothers case, it was highlighted that even in instances of non-accounting of goods, Rule 173Q could be applied without the need to establish mens rea. The Tribunal criticized the Commissioner (Appeals) for misapplying the Bhilai Conductors case law, incorrectly converting the penalty under Rule 226, and failing to consider that even under Rule 226, confiscation of unaccounted goods is provided for. Consequently, the impugned order was deemed unsustainable, and the original order-in-original by the adjudicating authority was reinstated. The appeal by the Revenue was allowed, and the respondents' cross-objections were dismissed.