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TMI Blog2001 (11) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... s found vis-a-vis the balance recorded in statutory records. These proceedings concluded at around 7.15 P.M. The total excess of drop wire (finished goods) found in excess was 155 Km. while the excess quantities of PVC compound (raw material) and copper wires (raw material) found were 1920 Kgs. and 950 Kgs. respectively. The goods so found in excess were believed to be liable to confiscation. On this basis, the department, by show cause notice, proposed to confiscate the seized excess raw materials and excess finished goods under Rule 173Q of the Central Excise Rules 1944 on the ground of non-accountal in statutory records, and also to impose penalties on the assessee-firm and its partner, Shri G.C. Ahuja under Rules 173Q and 209A respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be more precise, ld. Counsel submits, that quantity was the production between the time when the quantity of 105 Kms. was entered in the RG I register and the time when the stock was verified by the officers. He submits that no rebate for this quantity of finished goods was given by the adjudicating authority or the first appellate authority in the context of ordering confiscation, though the assessee had taken a specific plea to the above effect in their reply to the show-cause notice. Nowhere in the Panchnama was there any material to rebut the said plea of the assessee. The allegation of intent to remove the goods clandestinely was not at all supported by any evidence on record. Therefore, Counsel submits, there was no justification in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en admitted by the appellants. It is his further submission that the assessee is liable to be penalized under Rule 226, if not under Rule 173Q. In this manner, ld. SDR seeks to defend the impugned order. 5. I have examined the rival submissions. I find that, as regards the 50 Kms. of drop wire, the lower appellate authority has recorded a finding to the effect that there is nothing in Annexure-B to the Panchnama to support the assessee's plea that the said quantity of finished goods was the production of 10-2-97. I have examined the said Annexure-B to the Panchnama. That document contains the results of the measurement of the finished goods found in stock in various parts of the factory premises on 10-2-97. That document does not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials, there was no question of invoking clause (d) of Rule 173Q(1) for confiscation of the raw materials and for imposing penalty on that count on the assessee. There was, also, no proposal in the show-cause notice to impose penalty under Rule 226. Therefore, ld. DR's plea that penalty was liable to be imposed on the assessee under Rule 226 does not serve any purpose. Though the assessee has admitted contravention of Rule 173D by non-accountal of raw materials in Form IV register, such admission is not sufficient for confiscation of the raw materials inasmuch as the element of mens rea required under Rule 173Q(1)(d) has not been satisfied. Therefore, confiscation of the raw materials also has to be set aside and consequently the penalty to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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