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TMI Blog1989 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... xamining the record of the appellants factory, whereby it was revealed that the said goods found loaded in the aforesaid tempo on 3-7-1985 had actually left the factory gate on 30-6-1985, the officer concerned seized the said 26 wooden cases containing motor vehicle parts on a reasonable belief that it was a case of double transportation of the goods without payment of Central Excise duty because similar goods were being transported on the gate-passes which were of earlier dates. It was their further case that during the visit of the appellants factory, the officer concerned also found 13 wooden cases containing motor vehicle parts manufactured by the factory, in duly packed and ready to despatch condition, lying in the factory premises under the shed known as Cycle Stand. The same were also seized on a reasonable belief that the appellants cleared the said 13 wooden cases also from their manufacturing goods. Statement of Shri Vinod Kohli, an authorised representative of the appellants factory was recorded on 3-7-1985 itself wherein he is said to have failed to offer any accountal of these goods. As a follow up action, a show cause notice calling upon the appellants to show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by the appellants company only. 3. Shri P.A.S. Rao, learned counsel for the appellants almost raised all those contentions before us which were urged and rejected by the Adjudicating Authority. To wit, the appellants have a huge building complex at Ghaziabad and its outer wall has only one entrance gate known as gate No. 1. Inside this gate, there is a building meant for security guards. Opposite to this building, there is sufficient spare for parking of cars belonging to both the officers of the Company and the private persons. Adjoining to this there is a cycle-cum-scooter stand. The factory employees as well as the public men keep their two-wheeler vehicles in this stand and that this stand is managed through an independent contractor. Behind the security staff building, there is a canteen in front of which there is a lawn. Then comes another boundry wall which leads to main entrance gate known as gate No. 2 and from this place factory area starts. In this are, all types of manufacturing processes are carried out and from this gate No. 2, packed excisable goods loaded in vehicles move out of the factory. As no manufacturing or storage activity of excisable goods is car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasised that burden to prove is a shifting process and there are many cases in which the party on whom the burden of proof in the first instance lies, may shift the burden to the other side by proving facts giving rise to a presumption in his favour. In these premises he also urged that even in case any of the excisable goods has been found to have been removed in contravention of the Excise Rules, it won t be right for the Excise Authorities to order confiscation and imposition of fine unless they find that there is a mala fide intention on the part of the licensee. In other words no penalty is imposable for technical or venial breach of legal provisions. To bolster these contentions, which in many places are overlapping, he mainly relied upon the following case law - (1) M/s. Amber Bearing Manufacturing Co. (P) Ltd. v. Collector of Central Excise, 1984 ECR 966. (2) Harechand v. Additional Collector of Customs, 1981 (8) E.L.T. 699. (3) Amba Lal v. Union of India, 1983 (13) E.L.T. 1321 (S.C.) =AIR 1961 SC 264. (4) Kamungo Co. v. Collector, Customs, Calcutta, 1983 (13) E.L.T. 1486 (S.C.) = AIR 1972 SC 2136. (5) Devadattam v. Union of India, AIR 1964 SC 880. (6) In Re. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority and since we are affirming his findings we need not require to repeat the same here. However, we would like to mention a few here - (i) Admittedly the goods were intercepted on 3-7-1985 and all the Central Excise documents covering the subject goods were of 30-6-1985 and there were no remark or endorsement on the gate passes accompanying the goods indicating that the transporting vehicle had broken down. (ii) Had the subject goods could not be transported due to the break-down of carriers etc. and had to be brought into the factory, the appellants who is an established Central Excise Licensee should have followed the provisions of Rule 173H of Central Excise Rules, 1944 particularly with reference to Rule 1(c) thereof. Failure to observe the provisions of the said rules betrays that the goods in question were not the duty paid goods returned to the factory. (iii) On examination of the goods removal register (finished) maintained by the appellants it was found by the Adjudicating Authority that there was no movement of any particular vehicle. This omission also makes the defence of the appellants false. (iv) On examination of GRs maintained by the said transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) On examination the Adjudicating Authority had found that the copies of the challans recovered from the wooden cases were not signed by any of the officers of the appellants factory. Challan No. BZ-935 was not available in any of the wooden boxes bearing marks BZ-935. Further as per challan No. BZ-934 the wooden cases bearing BZ-934 should have been 5 in numbers whereas on physical verification only 4 wooden cases bearing the said number were found. Similarly, as per challan No. BZ-933 dated 30-6-1985 there should have been 5 wooden cases bearing No. BZ-933 whereas on physical verification the wooden cases bearing the said number were found to be 6. Thus, various discrepancies with regard to challans were noticed. (ix) During adjudication proceedings it was also found that the value of the seized goods as shown in the said 2 GP-1s did not tally with the value shown in the proforma invoice issued by the appellants factory which were also accompanying the goods during transport. This discrepancy also indicates that the GP-1s in question were not actually valid gate passes for the goods and the lack of consonance in the value occurred because a second consignment of the goods was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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