9911796707
TMI Blog2006 (12) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of the records found that the appellants had not accounted for the finished goods which were found lying outside B.S.R.; that the appellants had not debited the amount equivalent to 10% of the duty while dispatching the inputs to the job workers for job working and that the appellants had taken credit in P.L.A. for their excess amount paid by them on the clearances from their factory. A show cause notice was issued to the appellants for all these violations. The appellants defended the show cause notice on the ground that non-accountal is not intentional but due to non-availability of storage space in the bonded store room. As regards other two violations the appellants discharged their duty liability and contested the penalty imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods on the fact that the adjudicating authority as well as the appellate authority holds the goods were lying on the shop floor opposite bonded store room. As regards non-accountal of the goods it is the his submission that the appellant company started in the month of March, 1998 and due to heavy turnover of the personnel working in the department accounting could not be done as required under the provisions of law. As regards penalty imposed on the company under Rule 173Q(1) of the Central Excise Rules, 1944 it is his submission that the said penalty has been imposed without invoking any specific clause of Rule 173Q(1). As regards the penalty imposed on the employees under the provisions of Rule 209A of the Central Excise Rules, 1944 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were confiscated with an option to redeem the same with a rider that the appellants shall discharge the duty liability as and when the goods are cleared. On such a rider the appellants cannot be put to duty liability for the goods which are still lying in the factory premises. It is the settled law that excise duty is payable on the manufactured goods only when they are removed from the factory premises. If these goods are still in the factory premises confirmation of demand under Rule 9(2) is unsustainable and is liable to be set aside and I do so. 7. As regards confiscation of the goods which were found unaccounted, in the factory, it is undisputed that production started in the month of March, 1998 and the visit of the officers was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants non-accountal of goods and other interactions are not with any intention to evade payment of duty, and hence, the appellants cannot be clubbed in the category of habitual offenders. This proposition of law is squarely covered by the decision of the Division Bench of the Tribunal in the case of Ashish Cans and Containers Pvt. Ltd. [2004 (174) E.L.T. 483 (Tri.-Mum.)] Accordingly, confiscation of land, building, plant and machinery are set aside, as the appellant is not a habitual offender. 9. As regards penalty imposed on the appellant company I find that the penalty has been imposed under the provisions of Rule 173Q(1) without invoking any specific clause of the said rule. This issue is now squarely covered by the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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