Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise And ... vs Shabnam Synthetics on 21 December, 2005
ORDER S.S. Sekhon, Member (T)
Page 254
1. Heard the Ld. SDR in the miscellaneous application filed by the Revenue and ld. Advocate Shri Mayur Shroff for the respondent. Vide order No. S/344-345/WZB/2005-C-II dt. 10th May, 2005, the Bench after noting that goods worth Rs. 12 lakhs (Rupees twelve lakhs only) had been confiscated & were lying in the safe custody of the applicants unit and the applicants had not exercised the option of redeeming the goods offered by the authorities below. Therefore, there was no need to seek waiver of pre-deposit of duty and the tribunal thereafter felt that only a consideration of pre-deposit of penalties was required to be arrived & made in this case; thereafter noting that the goods valued at over Rs. 12 lakhs (Rupees twelve lakhs only) confiscated, would prima facie render interest of the Revenue safeguarded. The requirement of pre-deposit of penalty of Rs. 50,000 (Rupees fifty thousand only) was ordered with stay of recovery thereof pending the appeals.
2. Vide this application, the ld. commissioner has contended that on 21st September, 2005 when the factory was visited by central excise officers, it was found that the party had replaced imported confiscated goods with goods of local marking and copy of the panchanama drawn on that date was enclosed. This plea and the panchanama do not indicate that alleged substitution of the goods had taken place on or before the order dt. 10th May, 2005 of this Tribunal. The plea of the Tribunal being misled on 10th May, 2005 by the advocate & or the assessee is therefore not substantiated. Subsequent substitution of confiscated goods not redeemed will not uphold the plea of "misled the Tribunal". In light of the facts, the prayer that the stay order passed on 10th May, 2005 may be vacated cannot be accepted.
3. The reason in our order dt. 10th May, 2005 as regards no need to seek waiver of pre-deposit of duty is still valid, since the goods are under confiscation & not redeemed. Vide order dt. 10th May, 2005 only the waiver of Rs. 50,000 (Rupees fifty thousand only) as pre-deposit of penalty was ordered along with stay of recovery of the said pending.
4. The goods were undoubtedly confiscated and not redeemed by the assessee. It was & is the responsibility and liability of the officer, who adjudicated and ordered the confiscation of the goods to take charge of the goods so ordered to be confiscated. If they have failed in their duty to safeguard the confiscated goods they can take recourse to such action as is permissible to them under law. Our stay order as regards waiver of penalty & stay of recovery cannot be an impediment.
5. We have considered the plea of the Ld. SDR that liberty may be granted to take such action as may be available to them. We find that no further express orders regarding the same are required to be made. The application is disposed of in the above terms.
6. The order to be issued to both sides. Dusti (Pronounced in court)