9911796707
TMI Blog2005 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... corresponding to those invoices as were found in respect of 28 other invoices showing excess removal of goods. Revenue has also challenged the order of the Commissioner (Appeals) to the extent he has set aside the order of the adjudicating authority confiscating the goods (bare copper wire and bare aluminium wire) seized in the factory premises under Rule 173Q(1) and also reduction in mandatory penalty imposed by the adjudicating authority. 4. The facts briefly stated are that when the Preventive officer visited the factory premises of two consignees of the appellant and conducted physical verification, they found excess stock of raw material and unaccounted stock of finished goods. The commercial assistant of the unit admitted excess quantity of raw materials over the purchase bills/invoices. They, therefore, visited the premises of the appellant who had supplied the goods to the factory premises of the appellant-assessee. They found, on physical verification, excess stock of bare copper wire (586.400 Kgs) and bare aluminium wire (1403 Kgs.) This excess quantity was seized under a panchnama. On further scrutiny of the record, it was found that the appellant clandestinely manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from the consignees along with the invoices. Mandatory penalty of Rs. 3,50,483/- was imposed on the appellant under Section 11AC read with Rule 173Q with an option to pay the penalty of 25% of the amount as per proviso to Section 11AC by the Adjudicating Authority which came to be reduced to Rs. 70,788/- by the Commissioner (Appeals). Interest was also ordered to be recovered from the appellant on the amount confirmed to be recovered in terms of Section 11AB. 6. The learned Counsel appearing for the appellant-assessee contended that there was no co-relation, even in respect of 28 invoices with a packing slip, because there was no mention in the packing slips about the invoices and vice versa. It is also submitted that no demand could be made on a pro rata basis in respect of remaining 89 invoices on the basis of excess calculated for the said 28 invoices. He submitted that order of confiscation of the goods has been rightly set aside by the Commissioner (Appeals) when goods were merely lying in the factory and there was no evidence to prove any intention to clandestinely remove them. There could not have been any confiscation of such goods solely on the ground that no e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices and would constitute a valid basis for an inference that even the 89 other invoices showing excess goods were sent to the consignees, who were originally noticee Nos. 2 and 3 and whose assistant had admitted that they received excess goods from the appellant. The learned Authorised Representative for the department supported the reasoning adopted by the adjudicating authority and submitted that there was no warrant for disturbing the order-in-original which was based on material on record and passed for cogent reasons. 7.1. The learned Authorised Representative for the department placed reliance on the following decisions in support of his contentions : (1) The decision of this Tribunal in Blue Blends (India) Ltd. v. CCE, Ahmedabad [2004 (163) E.L.T. 238 (Tri. - Del.)] was cited to point out that in a case where the goods, in fully finished condition, were unaccounted for under the statutory rules, the Tribunal held in Para 5 of the order that they were liable to be confiscated. The Tribunal held that liability in terms of clauses (a), (b) and (c) of sub-rule (1) of Rule 173Q did not depend upon mens rea by relying on the judgment of Bombay High Court in Kirloskar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Singh Parihar, production in-charge of noticee No. 1, as referred to in the show cause notice and the orders made by the authorities below, it becomes clear that he did not make any specific admission in respect of the said 89 invoices. Even the assistant of the original noticee Nos. 2 and 3 did not make any admission of receipt of excess goods from the appellant in the context of 89 invoices. The statement of Shri Mohan Singh Parihar was general in nature showing that excess goods were removed and the invoices reflected only l/4th of the quantity removed. On the basis of such general statement, it is difficult to infer that even in respect of 89 invoices for which no corresponding packing slips were found, there was excess removal of goods on any pro rata basis keeping in view excess reflected from the 28 packing slips and their corresponding invoices. No such conjecture would be permissible in absence of any evidence to show removal of the goods in the context of 89 invoices for which the Commissioner (Appeals) has set aside the Adjudication order. 9. As regards the impugned orders setting aside the confiscation of finished goods, which were not noted in the RG 1 register, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
