Customs, Excise and Gold Tribunal - Mumbai
Bhagwati Silk Mills vs The Commissioner Of Central Excise on 1 July, 2005
ORDER Archana Wadhwa, Member (J)
1. As per facts on record, the Central Excise Officers visited the premises of the transport agent on 17/03/2003 and on verification of the stock, it was noticed that finished dyed MMF (P) packed in plastics bags/bales of the different parties was lying there without coverage of any Central Excise documents. The goods were put under detention. Out of the total quantity of bales found in the transporter's premises, eighty two bales belonged to the appellants. Statement of the transporter agent recorded on the day of visit of the officers as also on 20.03.2003 revealed that the goods were meant for transportation to Calcutta and were not covered by any duty paying documents. Statements of the appellant's Director was also recorded on 21/24.03.2003, wherein he admitted that the goods were cleared without payment of duty and were dispatched to various traders without any Central Excise invoice.
2. Based upon the above facts, duty of Rs. 94,961/- was confirmed against the appellants along with confirmation of interest. Seized goods were also confiscated with an option to the appellants to redeem the same on payment of redemption fine of Rs. 1.00 lakhs. Penalty equivalent to duty amount was also imposed under the provisions of Section 11AC of Central Excise Act, 1944.
3. I have heard Shri M N Sayed, Ld. Advocate appearing for the appellants and Shri N V B. Nair, Ld. DR appearing for the revenue.
4. The appellant's main contention is that the goods were cleared by them on the basis of Central Excise invoice dated 15.3.2003 and 16.03.2003. As such, it cannot be said that the goods were not duty paid. However, I find that at the time of seizure on 17.3.2003, the transporter agent admitted that the goods were without coverage of any Central Excise invoices. The Director of the company also admitted clandestine removal of the said goods without payment of any duty. Authorities below have found that the invoice subsequently produced by the appellants were not covering the goods, inasmuch as there was no bale numbers mentioned in the said invoice. Further, the goods were meant for dispatch to Calcutta, whereas the invoices were for the parties located at Surat.
5. The transporter agent as also the appellant's representative admitted in their statements having cleared the goods without payment of duty. There was no retraction to such statements at any point of time. In these circumstances, I am of the view that there exists sufficient material to conclude that the said 82 bales which have been found not covered by the invoice, were cleared clandestinely. Accordingly, I confirm the demand of duty of Rs. 94,961/- against the appellants.
6. As regards the confiscation of the goods, the appellants have contested that there was no proposal in the show cause notice to confiscate the goods. As such, this part of the order has traveled beyond the show cause notice, I find favour in the above contention of the Ld. Advocate. The goods cannot be confiscated without there being a notice to that effect. By ordering confiscation, the original adjudicating authority has traveled beyond the show cause notice. In view of the above, I set aside the confiscation of the goods in question.
7. In the facts and circumstances of the case, penalty is also reduced to Rs. 50,000/- (Rupees fifty thousand only). But for the above modification, the appeal is otherwise rejected.