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TMI Blog2010 (1) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... oulds, Center Column, Bottom Plate etc. The respondent avail Cenvat credit of duty paid on the inputs as per the provision of Cenvat Credit Rules, 2004. On 14-11-06, the Respondent s factory was visited by the Central Excise Officers and physical stock taking of the finished products and inputs was conducted. While in respect of one of the inputs - Ingot mould shortage of 79.85 MT vis- -vis the balance in the records, involving duty of Rs. 1,43,051/- was noticed, in respect of steel ingots excess of 15.56 MTs was noticed. The excess stock of 15.56 MTs of Steel ingots was placed under seizure. 1.2 A show cause notice was issued to the respondent for - (a) confiscation of 15.56 MTs of steel ingots not accounted for RG-1 register; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the Respondent under Section 11AC. The Commissioner (Appeals) also reduced the penalty on the respondent imposed under Rule 25(1) from Rs. 25,000/- to Rs. 10,000/-. The Revenue has come up in appeal against the part of the Commissioner (Appeals) s order setting aside the order of the confiscation and redemption fine in respect of 15.56 MTs of steel ingots and also against the part of the order setting aside the penalty of Rs. 1,43,051/- imposed on the Respondent. The Respondent have filed a cross objection in respect of this appeal of the Revenue. 2. Heard both the sides. 2.1 Shri R.K. Saini, the learned Departmental Representative assailed the part of the impugned order setting aside the order of the confiscation, redemption fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock for any finished goods in the RG-1 register does not attract the confiscation and penalty and for attracting confiscation and penalty, it has to be proved by the Department that the assessee intended to clear the same clandestinely, that in this regard, he relies upon the judgments of the Tribunal in the case of Bhillai Conductors (P) Ltd. v. CCE, Raipur reported in 2000 (125) E.L.T. 781 (Tribunal) and of Hon ble Madhya Pradesh High Court in the case of Supreme Industries Ltd. v. CESTAT, New Delhi reported in 2007 (214) E.L.T. 187 (M.P.), that so far as setting aside penalty of Rs. 1,43,051/- in respect of shortage of 79 MTs of ingots mould is concerned, from the very beginning the Respondent s stand had been that these ingots mould h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. From the language of the clause (b) of sub-Rule 1 of Rule 25 it is clear that confiscation and penalty under this clause would be attracted for mere non-accounted of excisable goods in RG-1 register and the intention to evade the payment of duty is not required to be proved. Clause (a) and (c) of sub-Rule (1) are also similarly worded. The intention is required to be proved only in respect of the contraventions covered under clause (d) of sub-rule 1. Rule 10 of the Central Excise Rules requires an assessee to maintain a daily account regarding production and clearance of the finished goods. Since this case, the 15.56 MTs steel ingots had not been accounted for in RG-1 register, the provisions of Rule 10 had been contravened and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking. Though at the time of stock taking when the shortage was detected, inquiry was made with Shri Navin Kumar Agrawal, Director of the Respondent Company and also with Shri Virendra Singh Thakur, Dy. Manager, Excise and both of them stated that this quantity had been used for captive consumption and the unskilled labours while using this quantity may not have intimated to the production department, the Department has not produced any evidence that this quantity had been removed clandestinely without payment of duty. On this point, the Assistant Commissioner s findings are that the fact of the shortage of Ingot Moulds was accepted by Director of the Respondent company panchanama as well as by Shri Virendra Singh Thakur, Dy. Manager, Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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