9911796707
TMI Blog2003 (6) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants' final product, 11339 numbers of HDPE Pipes and 15879 numbers of HDPE Pipes and Fittings were found in excess of the recorded balance in RG-I. The said goods were seized by the Officers of DGCEI. Further investigations revealed that raw materials i.e. HDPE granules, on which the appellants had availed Modvat credit, were found short than the recorded balance in the RG-23A records and in addition, 12.668 MT. of low priced HDPE granules were found in excess in the appellants' factory. The statements of various persons including that of the appellants' Laboratory-in-Charge, Shri S.C. Panda and the Authorised Representative, Shri R.S. Gupta and the Executive, Shri R.L. Jhawar, were recorded. The appellants, on 3-9-96, vide their let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specification. As such, they could not have removed the said goods in the open market without payment of duty. By referring to various case-laws, it has been pleaded that there is no justification for confiscation of the excess-found goods inasmuch as they were still lying in the factory premises and there is no evidence on record to show that the same were in preparation for clandestine removal. The appellants have contended that the goods were not entered in the RG-I records, as they were awaiting Quality Control Test, and as per the practice being followed by them for the last number of years, the goods were entered in the RG-I, only after they passed the said test. In respect of some of the goods which were fully packed, they contend th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty in the past. Thus, the non-accountal of the goods results any mala fides and mens rea. The CEGAT in the case of Bhillai Conductors v. CCE, Raipur has held that in such cases, neither there could be confiscation of the goods nor imposition of penalty. I respectfully differ with CEGAT's findings in view of the provisions of 173Q(b) of the Rules. (emphasis provided). However, I do take the totality of facts and circumstances into account and take a lenient view while fixing the quantum of redemption fine and penalty........." From the above paragraph, it would become clear that the Commissioner is not doubting the bona fides of the appellant company and has imposed penalty by observing that the appellants could not have cleared the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification for confiscation of the goods. Accordingly, the confiscation of the excess-found final products as also the raw materials, is set aside. 3.3 As regards 119.125 MTs. of fresh HDPE granules involving input-duty credit of Rs. 11,51,089.00 (Rupees eleven lakh fifty-one thousand and eighty-nine), the Department has alleged that the appellants had removed the said granules from their factory, after availing the credit and had substituted the same by equivalent quantity of reprocessed low priced granules. The above allegations are based upon the verifications conducted by the Visiting Team, wherein the high priced granules were found short and the low priced granules were found in excess. The appellants have contended that due to prol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants to take an altogether a new and different stand at the time of adjudication when the appellants' representatives have themselves admitted the shortages of Prime Grade Granules in their factory. As such, we are of the view that the confirmation of the demand of duty of Rs. 11,51,089.00 (Rupees eleven lakh fifty-one thousand and eighty-nine) is proper and just. We uphold the same. 3.4 As regards the personal penalty of an identical amount imposed under the provisions of Section 11AC, Shri Chattopadhyay, learned Consultant has argued that the period in the instant case being prior to introduction of the said Section, the same cannot be invoked for imposing the penalty. We agree with the above contention of the learned Consult ..... X X X X Extracts X X X X X X X X Extracts X X X X
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