Customs, Excise and Gold Tribunal - Delhi
Parle Beverages Pvt. Ltd. vs Collector Of Central Excise on 24 January, 1995
Equivalent citations: 1995(79)ELT619(TRI-DEL)
ORDER Gowri Shankar, Member (T)
1. M/s. Parle Beverages manufacture "Frooti" in its factory at Vaniwali. On 19-10-1985, the Central Excise officers who had come to the factory found a van, loaded 720 cartons of these drinks parked near the factory gate. The driver of the van or the staff in the factory, could not produce a gate pass for the goods. In the last gate pass issued on two days earlier on 17th October, no debit of duty on 720 cartons had been found to have been made in the personal ledger account. The officers therefore seized these cartons. They also seized 90 cartons of Frooti manufactured on 6th October which they found kept outside the store room without their particulars having been entered in the RG Register. Adjudication proceedings were initiated and ended with the Assistant Collector of Central Excise confiscated the cartons of the drinks and the van, but with option to redeem them on payment of duty. He also imposed penalty on the company. In appeal, the Collector (Appeals), Bombay reduced the redemption fine for the drinks under vehicles by half to Rs. 3,500/-and Rs. 5,000/- but upheld the penalty of Rs. 2,000/-.
2. I have heard Shri Rohan Shah, Advocate for the company and Shri Singh, Departmental Representative. The DR supports the orders of the lower authorities. It has all along being the appellant's case that the 720 cartons had not been removed from the factory and therefore, the appellant has not contravened the law. The cartons had been loaded in the van by error. The van driver was in a hurry. After parking the van, he informed the concerned persons in the factory and went looking for the excise clerk. In the meantime, the staff had already loaded the van with the cartons. This claim in fact, is substantiated by the statement of the driver and the General Manager of the factory recorded on the date of seizure, as narrated in paragraphs 2 and 3 of the Assistant Collector's order. Therefore, in addition to the fact that there has been no contravention of Rules since these 720 cartons had not actually been removed from the factory, the statement recorded immediately after the seizure strongly suggests that there was no deliberate attempt or intention to remove the goods without payment of duty. The confiscation of these goods therefore, is not sustainable.
3. I now turn to the remaining 90 cartons. Here, the appellant's claim is that these contained defective goods as the package of drinks were leaking. The production of such type of packages had only recently been undertaken by the appellant and they wanted to keep them for a month or so to see exactly how and why the leakages in the packages had taken place. The goods had not been completely packed and therefore for having been manufactured they have not been entered in the RG-1 Register. These 90 cartons were in fact destroyed on the basis of an application made by the appellant in January. However, the fact that these were destroyed and found defective after being packed does not lead me to conclude that they were not manufactured goods. Normally; the goods would have been removed immediately after the manufacture. It has not been shown that the packages started leaking after they had been filled and therefore, I cannot accept that there was no legal liability for these to be accounted in RG-1 Register. I however, agree that these facts did not disclose any deliberate attempt to evade duty. Here the fact that the cartons were destroyed assumes significance. Shri Rohan Shah cited the decisions in 1990 (47) E.L.T. 100 : 1990 (45) E.L.T. 285 etc. To support his claim where there is no deliberate intention to evade duty, penalty is not imposed. Having regard to these decisions, and the facts of this case, I remit the penalty in full.
4. The appeal is therefore allowed in full.