2010 (1) TMI 500 - HC - Central Excise

Penalty - Clandestine Removal - even if goods had not been entered in RGI register, yet the same cannot lead to conclusion that goods were meant for clandestine removal. Held that - there was no mens rea on part of assessee to clandestinely remove the goods. Department failed to prove the element of mens rea for imposition of penalty. Appeal dismissd.

Summary

Issues:
1. Impugned order by the Customs, Excise and Service Tax Appellate Tribunal dismissed the appeal of the Revenue regarding clandestine removal of finished goods.
2. Allegation of clandestine removal of alloy steel flats and rounds from the factory premises.
3. Confiscation of goods and imposition of fine and penalty by the Joint Commissioner.
4. Appeal filed by M/s. Sadashiv Ispat Ltd. against the order of confiscation and penalty.
5. Argument by Revenue regarding mens rea and intention for clandestine removal.
6. Argument by respondent's counsel regarding irregularity in recording finished products.
7. Question of law regarding mens rea as a pre-condition for confiscation of unaccounted exciseable goods.
8. Comparison with previous judgments on the requirement of mens rea for imposition of penalty.
9. Failure of the Department to prove mens rea for penalty imposition.

Analysis:
1. The High Court examined the case where the Customs, Excise and Service Tax Appellate Tribunal's order dismissing the Revenue's appeal was challenged. The inspection revealed unrecorded alloy steel flats and rounds, leading to allegations of clandestine removal.
2. The respondent, a manufacturer, faced a show cause notice for the unrecorded goods. The Managing Director attributed the lapse to staff negligence during his absence. The subsequent order of confiscation and penalty was based on the suspicion of clandestine removal.
3. M/s. Sadashiv Ispat Ltd. appealed the order, resulting in the Commissioner finding no intention for clandestine removal but reducing the penalty. The Revenue's appeal to the Tribunal was also dismissed, prompting the current challenge in the High Court.
4. The Revenue argued vehemently for mens rea, emphasizing the absence of necessary finishing processes for the goods. In contrast, the respondent's counsel cited staff-related delays as the reason for irregular recording.
5. The Court considered the essential question of mens rea as a pre-condition for confiscation of unaccounted goods, referring to relevant precedents. The requirement of mens rea for penalty imposition was highlighted based on established legal principles.
6. Ultimately, the High Court found no evidence of mens rea presented by the Revenue for penalty imposition. The Commissioner and Tribunal's findings aligning with this conclusion were upheld, leading to the dismissal of the appeal. The absence of a case for penalty imposition was deemed consistent and not unreasonable.