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TMI Blog2001 (11) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant-company, who stated that the above one piece of UPSs was in fully finished, tested and packed condition and that there was no production on that day. on the basis of a reasonable belief that the UPSs was liable to confiscation, the officers seized it under a Panchnama. They also resumed statutory records from the factory. On the basis of the results of investigation, the department framed a case of non-accountal of finished goods against the appellants and, by show cause notice, proposed to confiscate the seized goods and impose penalty under Rule 173Q of the Central Excise Rules, 1944. In adjudication of the dispute, the Deputy Commissioner of Central Excise ordered confiscation of the UPSs under Rule 173Q with option for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 173Q for confiscation and imposition of penalty on the ground of contravention of Rules 53 and 173G, it is a peremptory requirement that there should be a finding of mens rea against the assessee. In the instant case, there is not even an allegation to this effect, let alone any finding. On this point, ld. Counsel relies on the Tribunal s decision in the case of M/s. Bhillai Conductors (P) Ltd. v. CCE, Raipur [2000 (125) E.L.T. 781 (T) = 2000 (91) ECR 569]. Ld. Counsel prays for setting aside the impugned order and allowing the appeal. 4. Ld. JDR, Sh. V.K. Verma, for the Revenue, submits that the appellants have had an inconsistent case vis-a-vis the department s allegation that they had not accounted for one piece of finished UPSs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to be inconsistent. The finding of non-accountal, therefore, cannot be faulted. The question which now arises for consideration is whether a case of non-accountal of this sort can be the basis for confiscation of the goods and imposition of penalty under Rule 173Q. In the case of Bhillai Conductors cited by ld. Advocate, this Tribunal held that composite contravention of Rules 53 and 173G could attract only Clause (d) of Rule 173Q(1) and, therefore, an order of confiscation and penalty for such contravention had to be treated as order under the said Clause (d). In the instant case, it appears from the records that the authorities have invoked Rule 173Q for confiscating the goods and imposing penalty on the ground of contravention of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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