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TMI Blog1987 (12) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... nd varnishes, but without the aid of power. On 21.3.1975, the Central Excise Preventive Officers of S.R.P. HQrs. Office, Baroda paid a surprise visit to the premises of M/s. Royal Paint Products and found 67 drums of 20 Kgs. each, of synthetic oil bound distemper lying in the factory without markings. The drums were received from M/s. Royal Paints without any Central Excise Gate Pass. The said synthetic oil bound distemper weighing 1340 Kgs. valued at Rs. 6,700/- had been removed by M/s. Royal Paints from their factory without payment of Central Excise duty. The goods were seized by the Officers. It is alleged that further investigations made by the Department revealed that M/s. Royal Paints suppressed their production and diverted the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paint Products were asked to show cause against imposition of penalty under Rule 52A(5) of the Central Excise Rules. On adjudication of the case, the Collector of Central Excise, Baroda held the charges as established and passed the following orders :- (i) Confiscation of 67 drums of oil bound distemper weighing 1340 Kgs. and valued at Rs. 6,700/-, with a redemption fine of Rs. 2500/-; (ii) Ordered M/s. Royal Paints, under Rule 9(2) of Central Excise Rules, to pay Central Excise duty on the goods valued at Rs. 89,577.80 and Rs. 1,46,472/-; (iii) Imposed penalty of Rs. 25,000/- on M/s. Royal Paints under Rule 173Q of Central Excise Rules; and (iv) Imposed penalty of Rs. 1000/- on M/s. Royal Paint Products under Rule 52A(5) ibid. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be maintained. (vi) Public Works Department addressed the Order to M/s. Royal Paints through mistake. The goods were to be supplied by M/s. Royal Paint Products. (vii) In para 3 of the Collector s order, the dates of clearance are not given, which means that the dates are not known to the Department. (viii) Receipt of the goods without Gate Pass is no offence under Rule 52A. So, the penalty of Rs. 1000/- on M/s. Royal Paint Products is not sustainable. 3. Shri Shishir Kumar has argued as follows :- (i) Shri Vikram Shah of M/s. Royal Paints admitted that 67 drums were not accounted for in R.G. 1. There is no evidence of endorsement of Range officer on Gate Pass No. 78, dated 29.3.1975. Gate Pass is to be issued before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Paint Products were manufactured and removed by M/s. Royal Paints before 20.3.1975. The value of these goods, viz. Rs. 6700/- should be included in the clearance of M/s. Royal Paints for 1974-75. Regarding the other goods detailed in paragraph 2 of the order-in-original, the contention of the learned Consultant is that the same were manufactured by M/s. Royal Paint Products without the aid of power and the same should not be; included in the clearance figures of M/s. Royal Paints. In Paragraph 19 of the order-in-original the Collector has stated that It is seen from the records that the actual supplies of the paints mentioned in para 2 of the notice were the supplies made by M/s. Royal Paints...... The Collector has not specified the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not known to the Department. We find that at no stage before the lower authorities, the appellants disputed the fact that these goods had been cleared during the financial year 1974-75. Even in the Revision Petition filed before the Central Government which stood transferred to us for disposal as an appeal, they did not raise any dispute about the dates of clearances. It is now too late for the appellants to raise the question of dates of clearance of the goods. We, therefore, reject this plea. In the light of these discussions, the total clearances of M/s. Royal Paints should be computed as follows :- (i) Value of 67 drums oil bound distemper seized = Rs. 6,700.00 (ii) Value of item No. 1 of para 3 of Collector s Order = Rs. 73,724.85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eu thereof is, therefore, upheld by us. 8. In paragraph 6 (supra) we have held that there was no clandestine removal in respect of the goods detailed in paragraph 3 of the order-in-original. There is no material before us to come to the conclusion that in respect of these goods the appellants contravened any of the provisions of Central Excise Rules with intent to evade payment of Central Excise duty. 67 drums of oil bound distemper valued at Rs. 6700/-, included in item No, 1 of paragraph 2 of the Order-in-original were removed without any Central Excise Gate Pass with intent to evade payment of duty. Having regard to these facts, we are of the view that the penalty imposed under Rule 173Q on M/s. Royal Paints should be substantially red ..... X X X X Extracts X X X X X X X X Extracts X X X X
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