9911796707
TMI Blog2000 (3) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... n the truck. This was not debited. On verification of the records in the factory it was observed, that the stock of barbed wire weighing 11,610 kgs. valued at Rs. 2,57,504/- was lying in the factory and this quantity was not recorded in the RG 1 Register. This stock was also seized. It was also found that Invoices No. 22, dated 1-1-97, 23 and 24 both dated 21-1-97 and 25 dated 22-1-97 were issued and goods were cleared without payment of duty by debiting it in the PLA and on RG 23 A Pt. II. The statement of the proprietor Sh. Narayan Dutt and the Driver were recorded and a Show Cause Notice was issued proposing confiscation of goods viz. 11,610 kgs. of barbed wire seized in the factory and demanding duty on the goods cleared without debitin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od reveals that the party did not made entries of production clearances after 30-6-97 and similar is the case in respect of Register of Raw material and components i.e. Form IV Register. The maintenance of statutory records is mandatory and in no way can be postponed until and unless it is provided. In view of the above discussions I find that though the party issued proper Invoice No. 25 dated 22-1-97 carrying 11.775 MTs of Barbed Wire valued at Rs. 2,61,164/- in Truck No. JKP-5399 which were consigned to the Govt. Department and having all particulars therein but the fact remains on record that the duty was not debited either in PLA or in RG 23A Pt. II. Similar is the position with the goods cleared vide invoice No. 22 dated 1-1-97 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; however he imposed a penalty of Rs. 50,000/- under Rule 173Q on the assessee. 3. The Commissioner (Appeals) after considering the grounds made out in the appeal and the decision relied upon by the party found : - Regarding imposition of RF on the goods valued at Rs. 2,61,164/- in respect of which confiscation has not been proposed in the SCN, I find that the plea of the appellants carries weight because as per provisions of Section 124 of the Customs Act, 1962 as made applicable to CE matters issuing a SCN proposing confiscation is a pre-condition before goods can be confiscation RF could be imposed. Regarding goods seized in the factory premises which were not accounted for, I find that in view of the fact that four consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as domestic problem had cropped up due to this emergency. (c) A lenient view required to be taken as inputs are duty paid at 15% ad valorem and the final product was liable to duty at 5% ad valorem and there was an excess balance in the modvat account there was no reason to arrive at any intention to evade as the final products were being sent to Govt. departments. (d) The stand of sale to Govt. Deptt. has been accepted and the fact of balance in RT-2 has been accepted and recorded by the adjudicator and therefore; non-maintenance of statutory records have to be viewed in light of the facts. (e) There is no lacunae or a finding of any discrepancy in raw material account. (f) They relied on 1997 (93) E.L.T. 246 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision 1991 (51) E.L.T. 373 wherein a view held was that confiscation under Rule 173Q was not called for set aside the redemption fine. Therefore I am of the view that confiscation under Rule 173Q would be attracted only if intention to evade duty is proved. A mere non-entry in the Books without evasion of duty would be only a technical breach of the rules, which would call for a penalty only under Rule 173Q and not confiscation. Intent to evade duty is necessary to confiscate the goods under Rule 173Q. (b) In the present case, lower authorities have noted and recorded the fact that the supplies were to the Border Security Force, a Government department, and there was sufficient balance in the Modvat account to cover the duty involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the removals : non-debits, when sufficient balance exists would be procedural lapse. At the most, such removal could be said to the irregular and improperly accounted in the statutory records, in the facts of this case, I would, therefore hold that confiscation of the goods seized from the factory as ordered is not called for the same is set aside. I find, a penalty could be imposed for not keeping proper accounts and or maintaining the RG-1 stock registers. The penalty for such conduct of not maintaining proper accounts is maximum of Rs. 2000/- prescribed under Rule 226. Therefore, considering the facts and circumstances of this case I would reduce the penalty on the appellants which could have been imposed under Rule 173Q for non-a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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