9911796707
TMI Blog2000 (2) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... unaccounted for in the statutory records. They were placed under seizure under a panchanama. On verification of the records, 445 pcs. of ball bearings found short. They seized the records for investigation and found that the excess quantity of bearings which were not accounted for in the RG 1 register were actually recorded varietywise in the private book maintained by the person incharge of BSR and each and every variety of ball bearing recorded therein tallied with the quantity found in excess in BSR. The private record/book consisted the information regarding stock position of bearings for their own purpose. Entries in the (-) column indicates the clearance and (+) indicates the position of stock and column total indicates the stock position in BSR. The entries of minus column with the entries of various registers and Gate Passes were not tallying with the production and clearance shown in RG 1 and GP1. The clearance effected and recorded in private book were not entered in RG 1 register which indicated the entries of clearance on respective dates only for the excisable goods cleared after the preparation of GP1 and on payment of duty. The quantity cleared from BSR without GP1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1521 pcs. of ball bearings for the year 1990-91 and Rs. 4,70,769/- on 29,755 pcs. of ball bearings for the year 1991-92 and Rs. 945/- on 100 pcs of ball bearings and ordered confiscation of 5878 pcs. of ball bearings seized under Rule 173Q(1) with redemption fine of Rs. 50,000/- and confiscated land, building, plant and machinery belonging to the appellant in connection with the manufacture of goods, removal of such goods under Rule 173Q(2) with redemption fine of Rs. One lakh and an order for enforcement of bond executed by the appellant while releasing 5878 pcs. of ball bearings in terms of B-11 bond for non production of seized goods and an amount of Rs. One lakh was imposed under Rule 173Q(1) of the Central Excise Rules. Hence, this appeal. 3.Shri J.C. Patel, the ld. counsel for the appellant in the course of argument has submitted that the appeal regarding 445 pcs. 100 pcs. is not pressed and confines only regarding allegation of clandestine clearance. According to him, the private rough book was also seized along with the goods. In the reply to the show cause notice, there is an admission about the technical lapse in not entering 5878 pcs. found in BSR in the RG 1 register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Tractors at Annexure 19 and the GPl mentioned at Annexures 21 22 and Annexures 24 25 the statement showing rough records and RG 1 dated entries for 1990-91 and 1991-92, and the decision in 1992 (59) E.L.T. 175 in the case of Ashwin Vanaspati Ind. Pvt. Ltd. v. Collector. of Central Excise regarding clandestine removal of the vanaspati soap alleged by the department based on the private registers maintained by the supervisors of assessee's factory indicating only the day-to-day production and despatch of goods to cold storage room for solidification (still in unfinished and liquid stage) and not removal of these goods from the factory. The statement of supervisors and Director of factory not incriminating. Clandestine removal of goods not established. Demand not sustainable under Rule 9(2) of Central Excise Rules. In paragraph 18, the Bench has observed that the private register maintained by the labourers containing unauthenticated entries and over-writing are not a dependable record to establish clandestine removal unless the same is supported by other evidence, such as raw materials consumed, goods actually manufactured and packed relying on 1989 (39) E.L.T. 655 in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appropriate date at the time of actual clearance from the factory after recording in RG 1. 9.Regarding 5878 pieces of bearings, the reply to the show cause notice dealt with in paragraph 6 (pages 33 34). The sum and substance of which is, there is a lapse on their part in making RG 1 register, they are a small scale undertaking, which committed the lapse without any motive to defraud the Government. The bearings were exported under bond. They offered themselves for imposition of minor fine and penalty on sympathetic treatment. 10.The impugned order requires consideration in that regard. The Collector of Central Excise, Vadodara has considered and discussed the private note book and its comparison with the RG 1 register in pages 18 to 20 of the impugned order. According to that, some of the entries are exactly tallying with the RG 1 entries for production and clearance varietywise. This conclusion supports the case of the appellant that there is no defect in maintaining the RG 1 register. There is no clear and specific finding which entries are tallying and what is the difference regarding the entries which are not tallied. The above conclusion is made on the basis that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase to some extent in his order as observed above. The statement enclosed to the show cause notice with reference to 11,521 bearings in 27 items gives the picture of the description of goods, quantity cleared, rate per piece, value and the basic, special and total duty involved. Annexure 24 enclosed with the show cause notice, statement showing the particulars of bearings as per the private record maintained in the factory and not accounted for in the RG 1 register in the year 1990-91. In this statement, the date of entry in the RG 1 is shown against all 27 items. It also shows the duty involved. Another statement enclosed to show cause notice pertaining to 29,755, 124 items are shown with the same headings as per the previous statement for 11,521 bearings. The corresponding statement (enclosure 25) for the year 1991-92 shows 124 items with the date of entry in RG 1 register and the duty involved. The zerox copy of the RG 1 register for the period is produced and the ld. counsel has demonstrated that the items referred to in the statement enclosed to the show cause notice find a place in the RG 1 register under different dates. So all these things, supports the case of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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