1990 (4) TMI 164 - AT - Central Excise

Summary

Issues:
Appeal against confiscation of plywood by Additional Collector of Central Excise, Shillong. Legality of search, confiscation, and duty demand. Violation of Central Excise Rules regarding packing and marking. Burden of proof on appellants.

Detailed Analysis:

1. Legality of Search and Confiscation:
The appeal was filed against the order of confiscation of plywood by the Additional Collector of Central Excise, Shillong. The appellant contended that the search was illegal and the confiscation of goods was irregular. The appellant argued that the goods were seized without proper reason to believe, citing legal judgments to support their claim. The appellant also raised concerns about the violation of Central Excise Rules regarding packing and marking. The appellant argued that even if there were procedural violations, a nominal penalty would have sufficed. The legality of the search and subsequent confiscation was a key issue raised by the appellant.

2. Burden of Proof and Allegations:
The Respondent, represented by the SDR, argued that the burden of proof lies with the appellants to show that the goods had been cleared on payment of duty. The Respondent pointed out that the goods did not bear markings and were removed without payment of duty. The Respondent relied on the provisions of Section 106 of the Evidence Act to argue that the burden of proof rested with the appellants. The Respondent supported the order of confiscation and urged for the rejection of the appeal based on the lack of evidence regarding duty payment.

3. Analysis of Adjudication Order:
The Member of the Tribunal carefully considered the arguments presented by both sides. The Member noted that a larger quantity of plywood had initially been detained, but only 487 pieces were ultimately seized for not bearing markings. The adjudication order emphasized the absence of markings on the seized plywood as the main ground for confiscation. However, the Member disagreed with the Additional Collector's conclusion that the absence of markings indicated non-payment of duty. The Member found that the appellants had not been given a fair opportunity to present their defense adequately. The Member highlighted that the Additional Collector failed to consider the appellants' explanations regarding the markings and the duty-paying nature of the goods. The Member concluded that the confiscation order was not supported by sufficient evidence and lacked proper consideration of the appellants' defense.

4. Conclusion and Decision:
In the final analysis, the Member found the arguments challenging the confiscation order to be valid. The Member disagreed with the Additional Collector's reasoning and found that the burden of proof had not been met by the appellants. The Member noted that the Additional Collector did not adequately address the appellants' defense and failed to consider their explanations regarding the markings and duty payment. Consequently, the Member allowed the appeal, set aside the confiscation order, fine, and duty demand, ruling in favor of the appellants based on the lack of evidence supporting the confiscation.