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TMI Blog2019 (4) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... lation without reading R.25 (1) (d) ? (2) Whether the iron bars weighing into tons could it be judged only with the estimation without actually weighing the same? (3) Whether in the fact sand circumstances of the case, defence of the appellant stood jeopardised for the non-supply of weighment sheets? (4) Whether while issuing the show cause notice it was not necessary for the respondent/Revenue to supply the weighment sheets and counting sheets, and could the Revenue deny the supply of those documents on the basis that they are the documents not relied upon by the Department, as mere estimation of weighment is not enough to burden the appellant to fasten with the penal liability?" It is mentioned in the appeal memo that appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods so confiscated must be restored in favour of the appellants. From the pleadings of the appellant, it is apparent that according to him provisions of Rule 25 (1) (b) cannot be read in isolation without reading Rule 25 1 (d) and the order of appellate Tribunal having been passed by a Single Judge Bench being contrary to Division Bench judgment of the same Tribunal, Single Judge should have referred the matter to a larger Bench and in any case it could not have passed orders contrary to the principles of natural justice. Learned counsel for the Revenue, on the other hand, submits that there is no justification to seek copy of weighment sheet/counting sheet inasmuch as the excess finished goods were detected and seizure was carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered in the RG-I register and there was a proper explanation for such type of situation. Similar was situation in case of Reliance Industries. It is also submitted that to attract the provisions of clause (b) of the rule 25 (1) of the Central Excise Rules, 2002, mens rea is not required for confiscation of the non accounted goods. Hence Central Excise Appellate Tribunal has rightly set aside the order of the Commission. It is further submitted that as per Rule 10 of the Central Excise Rules, 1944, there is provision of daily stock account. Rule 25 provides for confiscation and penalty. Rule 25 (1) provides that subject to the provisions of section 11 AC of the Act, if any producer, manufacturer, registered person of a warehouse or a regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d confiscation. Intention of assessee to evade payment of excise duty was to be gathered from entirety of circumstances. It was a finding of fact with which High Court would not ordinarily interfere unless finding could be assailed on non-existence of material available on record and therefore, appeal was dismissed. Similarly, reliance has been placed on the judgment of High Court of Gujarat in case of Commissioner of Central Excise and Customs Vs. Saurashtra Cement Ltd., as reported in [2010 (260) ELT 71 (Guj.)], wherein in Para 22, it has been noted as under :- "22. It is also relevant to mention here that applicability of Rule 25 is subject to the provisions of Section 11 AC of the Act. The term "subject to" in the context assumes som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to pay penalty equal to the duty so determined". What is the significance of the word "liable" used both in Rule 173Q and Section 11AC? Under Rule 173Q apart from confiscation of the goods the person concerned is liable to penalty. Under Section 11AC the word "also" has been used but that does not appear to be quite material in interpreting the word "liable" and if liability to pay penalty has to be fixed by the adjudicating authority. The word "liable" in the Concise Oxford Dictionary means, "legally bound, subject to a tax or penalty, under an obligation". In Black's Law Dictionary (sixth edition), the word "liable' means, "bound or obliged in law or equity; responsible; chargeable; answerable; compellable to make satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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