Customs, Excise and Gold Tribunal - Mumbai
Ishwarlal K. Patel, Balbirsingh B. ... vs Commissioner Of Central Excise And ... on 29 October, 2001
JUDGMENT
Jyoti Balasundaram, Member (Judicial)
1. The above appeals arise out of a common order passed by the Commissioner of Central excise & Customs, Surat by which he was ordered confiscation of seized man made fabrics, but since the goods were not before him during adjudication as they have been provisionally released, he has appropriated the Bank Guarantee, confirmed the demand of additional excise duty of Rs. 36,121.92; confiscated the seized tempo and imposed penalty of Rs. One lakh on M/s. Radhakrishna Dyg. & Ptg. Mills and penalties of the following amounts on the other appellants:
S/Shri Natwar Malpani, Partner - Rs. 50,000/-;
Govind Malpani, Partner - Rs. 25,000;
Arvind M. Patel, Authorised Signatory - Rs. 15,000/-;
Ishwarlal K. Patel, Excise Clerk - Rs. 5,000/-;
Balbirsingh Shekhawat, Driver - Rs. 5,000/-.
Hence, these appeals.
2. I have heard the ld. Department Representative and perused the records. The case of the department is that the mills removed 303 pieces/28018 L.Mtrs. of processed man made fabrics on 19.11.92 in a tempo and with an intention to evade payment of duty leviable thereon, they prepared only original copy of the Gate Pass 1 issued to cover the fabrics so cleared, keeping duplicate/triplicate copies blank, so that, on safe delivery of the said fabrics at destination, lesser quantity can be filled in the duplicate/triplicate copies of the gate pass and thereby facilitating payment of lesser excise duty than actually payable. The case of the department is mainly based on admission of the various employees of the mills. Nothing has been brought out in the appeal memorandum to dislodge the findings of the Commissioner based upon the various submissions. However, the duty amount stands paid by the appellants. I, therefore, hold that the duty demand is sustainable. However, as regards confiscation and penalty, I hold that they are unsustainable in view of the decision of the Hon'ble High Court in the case of Pioneer Silk Mills [1995 (80) ELT 607), wherein it has been held that there was no provision for confiscation and penalty in the Additional Duties (Goods of Special Importance) Act, 1957 under which the duty has been confirmed.
3. In the result, I confirm the demand of duty of M/s. Radhakrishna Dyg. Ptg. Mills but set aside the confiscation and imposition of penalties on all the appellants. The appeals are thus disposed of as above.
(Dictated in Court)