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TMI Blog2018 (4) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the appellant directed to reverse the credit available. In the context of there being no detriment to Revenue, that remoteness of the alleged infraction and the consigning of duties of central excise to history, the balance should be allowed to tilt towards the proposition that subsequent reversal of credit immunises assessee from detriment. Confiscation and penalty set aside - appeal allowed. - E/713/2009 - A/85881/2018 - Dated:- 3-4-2018 - Justice Dr. Satish Chandra, President And Shri C J Mathew, Member (Technical) Shri S D Koshti, Dy Manager - Finance of appellant Shri N N Prabhudesai, Superintendent (AR), for the respondent Per: C J Mathew M/S Eagle Flask Industries Ltd were held to be liable to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e central excise authorities, the appellant should have reversed the credit availed on such inputs and, having failed to do so, rendered themselves liable to duty on goods without the benefit of exemption. During investigation, goods valued at ₹ 47,13,967 were also seized. Thereafter the show causes notice proposed recovery of duty of confiscation of the seized goods and imposition of penalties. 3. We have heard the representative appearing for the appellant and Learned Authorized Representative appearing for Revenue. According to the appellant, who are in appeal against the imposition of penalty and the redemption fine, there was no justification for these consequential detriment as they had sufficient credit at their disposal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dayal Alloy Steel Castings v. Commissioner of Central Excise, Ranchi [2014 (305) ELT 12 (Jhar)] has held thus '16. Sub-clauses (a), (b), (d) in Rule 173Q are independent provisions. Expression used as a conjunction, or indicating that each of the clauses is independent and violation of each of the subclauses attracts confiscation and penalty Sub-clause (b) mandates that goods shall be liable to confiscation if any manufacturer does not account for any excisable goods manufactured, produced or stored by him. The excisable goods lying in the factory premises were not accounted for in the statutory records and thereby, violation of Rules 173G (4), 53 and 54. Non-accounting of goods in the statutory records attracts Rule 173Q(1)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 209 being a penal clause, intention is in-built in it and therefore, mens rea is an essential ingredient to attract the Rules. It was submitted that Rule 173Q could not be legally invoked against the appellant merely on account of failure to maintain the accounts and that Revenue has to prove the intention of the appellant for clandestine removal of goods. Rule 173Q deals with confiscation and penalty and Rule 209 deals with penalty provision. Rule 173Q - confiscation and penalty - arise under breach of duty provided in the Central Excise Act and Central Excise Rules, which creates strict liability without proof of mens rea. As per Rule 173G(4)(a), every assessee to maintain such accounts, as the Commissioner may from time to time require o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s certainly not valid without establishing mens rea. Firstly, the -question whether one had an intention to evade excise duty is a question of fact. Secondly, Clauses (a), (b) and (c) of sub-rule (l) of Rule 173Q do not admittedly use the expression with intent to evade payment of duty , which is found in clause (d) thereof. It can, therefore, be prima facie, assumed that the liability in terms of Rule 173Q(l) subclauses (a), (b) and (c) does not depend upon mens rea. Moreover, on merits also we would not like to interfere with the finding of fact arrived at by the Central Excise Authorities in writ jurisdiction. Consequently, it is urged that the failure to record production and availment of ineligible credit should be visited with co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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