9911796707
TMI Blog2006 (1) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... ons : 5.1 I have considered the matter. The plea made by the appellant that the goods seized were in unfinished stage is not supported by any evidence. The stock taking was conducted by the Officers before the panchas as well as the representative of the appellant Shri Rajesh Kaushik. None of them have taken any plea at the time of stock taking that these goods were in unfinished stage. The appellant has placed reliance on their letter dated 17-5-2001 supposedly written to the Director General, Central Excise Intelligence, New Delhi, retracting the statement of Sh. Rajesh Kaushik and also mentioning that the goods seized were in semi-finished condition. On perusal of photocopy of the letter submitted by the appellant, I find that the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make alternative arrangement in case of leave of a person. Moreover, the seized goods involved about 11 varieties and are in large quantity. No evidence has been produced by the appellant in support of their plea that the same was entirely the production of 14-5-2001. The clarification relied upon by the appellant i.e the letter issued by the Chief Commissioner, Mumbai, dated 19-7-1995 is not applicable to their case as the same is application only where the factory is working in three shifts. Rule 53 of the Central Excise Rules, 1944 and Rule 10 of the Central Excise Rules, 2001 clearly prescribe the maintenance of stock register on a daily basis. As per Rule 173QW(1)(b) of the Central Excise Rules, 1944 and Rule 25(1)(B) of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made clear at the time of adjudication proceedings; and (iii) That as per the recent pronouncement of the Apex Court in the case of Amrit Foods v. CCE, UP, 2005 (190) E.L.T. 433 (S.C.), it is obligatory on the part of the Department to indicate which particular clause of Rule 173Q is being invoked before levying penalty. 3. He further contended that assuming that the goods are finished in nature, no confiscation is required in this case. For this contention, the learned Counsel relies upon the ratio adopted by the Tribunal in the case of Arora Manufacturing Co. v. CCE, Chandigarh-II, 2000 (120) E.L.T. 444 (T), in which it was held that in the absence of a clear finding that any attempt was made by the party to remove the goods cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that noticees were kept in dark by mere non-statement of the particular clause of Rule 173Q. As regards the allegation of mens rea, according to the learned Authorized Departmental Representative clause (b) of Rule 173Q takes care of such situations. Insofar as the plea taken by the learned Counsel that the end product seized was not from unaccounted raw material which can be verified by the Department, it was argued by the learned Departmental Representative that no one to one co-relation is evolved. Insofar as the applicability of the ratio adopted by the Tribunal in the case of Bhillai Conductors Pvt. Ltd. v. Commissioner, 2000 (125) E.L.T. 781, is concerned, which held that confiscation is not attracted by mere non-accountal of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and the same issue cannot be reopened at this stage. As regards the point relating to the export nature of goods, I find that the same was not taken up before the lower authorities and hence the same cannot be admitted at this juncture and even if it is considered that the goods were meant for export, the very fact that the non-accountal has been proved beyond doubt, it is infructuous opinion. 8. As regards the non invoking of the specific clause under Rule 173Q, it is noticed that the show cause notice issued to the appellants on 19-11-2001, contains full background and at this stage it cannot be argued that non-mention of the exact sub-clause here had created any disadvantage in any way to the appellants. Hence, I do not think the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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