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TMI Blog1998 (10) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in RG I register. 2. The brief facts of the case are that the respondents are engaged in the manufacture of Super enamelled copper wire falling under Item 33B(i) of the Schedule to the erstwhile Central Excise Tariff and were availing exemption on first clearances of the value of Rs. 7.5 lakhs during the financial year 1983-84 under Notification No. 83/83, dated 1-3-1983. Their factory premises was visited by the Central Excise officers on 4-8-1983 and on scrutiny of the statutory records, it was noticed that they had cleared super enamelled copper wire valued at Rs. 7,49,678.93P availing exemption of duty under the above mentioned Notification; that the RG I account had been written only up to 1-8-1983 and that the stock of super enamelled copper wire was shown as nil. On physical verification of the stock, 12 wooden boxes containing spools of super enamelled copper wire were found in the production department in fully manufactured, packed and ready to despatch condition. On physical verification of the adjacent premises belonging to M/s. Shashi Insulating Wires Co., who were also manufacturers of super enamelled copper wire weighing 485.445 kgs. was found in the store-room a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondents on the spools is not conclusive of manufacture of wires by the respondents. Further he has held that there is no evidence of any employee or person who had actually removed the goods from the premises of the respondents to the premises of M/s. Shashi Insulating Wires, while on the contrary, it is an admitted position that both the factories had machinery and capability clubbed to manufacture super enamelled copper wire. The Additional Collector has held that the raw materials and finished products account of the respondents were completely checked by the Department and no excess receipt of raw materials was produced. Further there was nothing to show removal of wires to the factory of M/s. Shashi Insulating Wires Co. In this background, he has held that the statement of Shri Shyam Sunder Rathi, Managing Director of the respondents, which was retracted at the stage of submission of reply to show cause notice, has not been substantiated or corroborated. 6. The learned DR has not put forth any convincing reason to persuade us to take a different view beyond stating that the retraction should not have been relied upon, being an after thought. Therefore, we are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot reached the RG I stage is hence not acceptable. 10. The order of confiscation for this quantity is accordingly confirmed and the cross objection rejected. Sd/-(Jyoti Balasundaram)Member (J)Dated : 10-5-1998 11. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (Judicial), my views and orders in the matter are as follows: 12. I observe that the Department s contentions have a strong force. 13. Since the 12 wooden boxes containing spools of super enamelled copper wire were found in fully manufactured, packed and ready for delivery condition, the Collector had rightly held them as liable for confiscation but has erred in taking a lenient view. The reasons for leniency were also wrong because once the above facts were established it was for the assessees to have entered the goods in the RG 1 register on the due date and it could not be considered as a merely technical error in the above facts and circumstances. He has also referred to a wrong Rule for the purpose of penalty and non-imposition thereof. This part of the case is not covered by Rule 9(2) but by 173Q itself and it is noteworthy that 173Q(b) also provides for imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve that the statement was recorded under duress or promise. The Collector has not indicated any circumstances which would go to show that the statement of the Managing Director was recorded under duress or promise. He has also erred in stating that there was no corroboration of the statement as it flies in the face of the fact that these boxes bearing the markings of the assessee s firm were found in sister concern s premises and were so removed without following the prescribed procedure. He has also erred in presuming that the goods were not liable to seizure simply because they were not found within the premises of the appellants. 19. The fact that both the factories were equipped with manufacturing super enamelled copper wire is not by itself sufficient and does not help the assessees case in any manner, once the circumstances themselves disclosed the facts that the action could only be based on mutual understanding between the two firms regarding such removal and clearance. 20. The reference to the raw material account and finished product account and its checking also does not help where it is shown that the assessees had not maintained up to date accounts. 21. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s grievance that the Collector has erred in taking too lenient view and in disposing of the matter merely by treating it as a technical offence was justified. I, therefore, set aside the impugned order and remand the matter back to the Collector for reconsideration of the same in the light of above observations and findings. Sd/-(S.K. Bhatnagar)Vice PresidentDated : 10-5-1998 POINT OF DIFFERENCE In view of the difference of opinion between Hon ble Member (Judicial) and the Vice President, the matter is submitted to Hon ble President for reference to a Third Member on the following point :- Whether in the facts and circumstances of the case, the impugned order is required to be upheld and the appeal is required to be rejected as proposed by Hon ble Member (Judicial) or the impugned order is required to be set aside and the matter required to be remanded for reconsideration in the light of observations and findings of the Vice President. Sd/-(Jyoti Balasundaram)Member (J) Sd/-(S.K. Bhatnagar)Vice PresidentDated : 13-4-1998 29. Shri Lakhinder Singh, learned Joint Senior Departmental Representative and Shri K.K. Anand, learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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