9911796707
TMI Blog1990 (7) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... found not accounted in the RG-1 Register and also the allegation that 197 Thans of Acylic knitted fabrics were found in lots in grey condition and not found recorded in the grey goods register and the others were waiting to be entered. The lot numbers were not traceable in the 65 pieces after dyeing, but there is no statutory requirement for marking lot numbers on the pieces and no adverse inference should be taken. Further as per Rule 233(A) of the Central Excise Rules, there is nothing to show that the appellants were the owners of the seized goods and the redemption fine was excessive and so also the penalty. 2. Shri Harbans Singh, ld. Advocate appeared on behalf of the appellants and referred to the Annexure- A to the seizure memo., containing the details of the goods seized and stated that this list does not indicate the place of seizure whereas other Annexures indicate and, therefore, he held that these were seized from the factory premises. The statement taken from the Rehri Pullers should not be relied upon as they are illiterates. Similarly, the statement of Shri Mewa Lal does not contain the signatures of the officers recording the statement. He further contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs is upheld and the redemption fine of Rs. 50,000/- is also found to be reasonable. For the contravention, the liability for penalty is also correct but, however, the same is reduced to Rs. 25,000/-. 5. Shri Harbans Singh, ld. Advocate completed his arguments on the merits of the case, but before concluding he submitted that he intends to raise a purely legal point to the effect that in the instant case the goods were not excisable and only additional duty was to be levied and paid, and there was no penal action to be taken. Shri Harbans Singh was informed that in the absence of any written application and reasons for not raising the said issue before the authority below, they can move proper application with a copy to the other side so that the Bench can decide as to whether the appellant is to be given an opportunity to raise the alleged pure question of law. 6. Shri Harbans Singh filed a Misc. Application No. E/Misc./476/89-NRB in Appeal No. E/1819/87-NRB and Appeal No. E/1258/87-NRB. The following additional grounds of law were sought to be taken up for consideration of the Tribunal :- (i) The sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e his point of contention, the term Subject used in the definition 2(d) will mean conditionally i.e. on the condition that it is levied to a duty of excise under the Central Excise Tariff. He raised the point on penalty, whether duty includes penalty and referred to the decision in M/s. Geep Industrial Syndicate, Allahabad v. Collr. of Cent. Excise, Allahabad, -1987 (37) E.L.T. 1040 (Tribunal) and stated that Rule 173Q cannot bring in lost duty - only penalty. And penalty does not take the place of duty in Central Excise taxation procedure and accounting because it is not duty, but is or can be in addition to duty. 8. In reply, Shri A.S. Sunder Rajan, ld. JDR, referred to the decision of the Supreme Court in M/s. Ujagar Prints Etc. Etc. v. Union of India Others -1988 (38) E.L.T. 535 (SC), wherein the Supreme Court has held that what applies to the main levy applies to the additional duties as well, meaning thereby, levy under the Central Excise Act would be applicable to the additional duties as well. He referred to the decisions in 1985 (21) E.L.T. 636 (SC) - M/s. Dhanpat Oil and General Mills v. Union of India Others, and 1985 (19) E.L.T. 455 (Tribunal) - M/s. Upper Gange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of the goods being Excisable Goods , they will be liable for provision of the Central Excises and Salt Act, including the penal provisions. 9. In his rejoinder, Shri Harbans Singh, the ld. Advocate was of the view that provisions of the Produce Cess Act will apply only in relation to levy and collection under Section 15 as wordings are similar, but will not all other provisions. The citations in 1985 (19) E.L.T. 455 (Tribunal) refer to procedural matters and will not be directly applicable. The case law in 1985 (21) E.L.T. 636 (SC) is with reference to prosecution and is not applicable. The citation in 1985 (21) E.L.T. 607 (Tribunal), the issue relates to refunds. The citation in 1988 (38) E.L.T. 535 (SC), he referred to Para 44 of the judgment and stated that all the provisions of the Central Excise Act will not apply. In 1987 (31) E.L.T. 211, with reference to Para 12, he said that on similar ratio as held, no provision has been made in the Additional Excise Duties Act for imposition of penalty. 10. The legal issue submitted and argued by both the sides has been considered. The Additional Duties of Excise (Goods of Special Importance) Act, 1957, as already pointed ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t depend on the actual levy of duty, but on the description as excisable goods in the First Schedule to the Act . The Karnataka High Court s decision in M/s. Karnataka Cement Pipe Factory v. Supdt. of Central Excise, Hubli and Another, 1986 (7) ECC 25 quoted supra is relevant. The Supreme Court in 1988 (38) E.L.T. 535 (SC) - M/s. Ujagar Prints, Etc. Etc. v. UOI, in its final analysis about the applicability of the provisions of the Central Excise Act to the levies under the various other Acts specified has very clearly concluded as follows :- The present case falls within the scope of these exceptions, even if S.3(3) is construed as incorporating certain specific provisions of the 1944 into itself. The legislation presently in question is clearly in pari materia with the 1944 Act. It is also merely supplemental. While the 1944 Act imposes a general levy of excise duty on all goods manufactured and produced, and aim of the present Act is to supplement the levy by an additional duty of the same nature on certain goods. The duration of the applicability is undefined but the statute is clearly enforceable as long as it is in the statute book side by side with the normal excise duti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
