2005 (10) TMI 160

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..... was very high. There is no evidence that the accounts were not maintained with an intention to evade duty. In my view, this is a simple case of non-maintenance of accounts. Moreover, the stock taking has not been done on the basis of actual weighment. It was done only on the basis of estimates. Hence a difference between the estimate and the RG-1 Register may not be very accurate. As there was no attempt to clear the so called excise goods, their confiscation is not warranted - there are no merit the Revenue s appeal and the same is dismissed.
Shri T.K. Jayaraman, Member (T) [Order]. - This is Revenue's appeal against the Order-in-Appeal No. 8/2003, dated 30-1-2003, passed by the Commissioner of Customs & Central Excise (Appeals), Coch .....

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..... ] It was also pointed out that in the case laws relied upon by Commissioner (Appeals), the situations were that the goods not reached the RG-1 stage and there was no attempt to remove the same clandestinely. According to the Revenue, since the Respondents have manufactured and stored excisable goods without entering in the statutory records, there is possible intention to remove them clandestinely. 4. Shri K. Parameswaran, learned Advocate appeared for the Respondents and Shri Ganesh Havanur, learned SDR appeared the Revenue. 5. Apart from the case laws relied on by the Commissioner (Appeals), the learned Advocate drew my attention to the following case laws : - (i) Southern Steel Ltd. v. UOI [1979 (4) E.L.T. (J 402) (A.P.)] (ii) Bhill .....

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..... nder Rule 173Q. It is well settled that penal provision had to be construed strictly and in favour of the assessee unless the Court is compelled by the language to construe it other wise. Decisions referred to by the counsel on behalf of the appellants are of the consistent view in holding that no penal action can be taken under Rule 173Q either in confiscating or imposing penalty unless the goods were removed illegally or final goods should have been in the preparation for such removal or they must have been seized while being transported without recovery or gate passes and without payment of duty." I am inclined to agree entirely with the ratio of the above cited decision. In the present case, the Commissioner (Appeals) himself has state .....

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