Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise, ... vs Continental Chemicals on 3 July, 2001
Equivalent citations: 2002(140)ELT116(TRI-MUMBAI)
ORDER
Gowri Shankar, Member (Technical)
1. On a visit to the premises of Continental Chemicals, the manufacturer who is the respondent to this appeal, the departmental officers found that 363 kilograms of paracetamol manufactured by it had not been entered in the RGI register. It also found some other discrepancies with which we are not concerned in this Appeal. A notice was issued proposing confiscation of the paracetamol under Rule 173Q. The Assistant Collector passed orders confiscating the goods with an option to redeem them on payment of fine. On appeal from this order, the Commissioner (Appeals) said that the provisions of Rule 173Q would not apply. The goods were manufactured on 27.2.1992, the date on which the officers visited the factory. There was therefore no mens rea on its part. He therefore set aside the confiscation. This is challenged in the appeal.
2. The ground in the appeal is that the provisions of Rule 173Q would be attracted for the reason that the goods were are not accounted for in the R.G.I. register. Clause (b) of Rule 183Q refers to "a manufacturer or producer, registered person of a warehouse or a registered dealer who does not account for excisable goods manufactured, produced or stored by him". It is not possible to agree that this clause takes into its scope goods which are physically present but details of which are not entered in the accounts maintained by the manufacturer . The phrase "accounting for" is not synonymous with the phrase "entered in the account". Accounting for anything means being answerable for or explaining a particular course of conduct. A person thus may be asked to account for his failure to do a particular act that he was required to do. In the context of the rule, it is clear that the expression is used in such a manner as to case a burden on the manufacturer or other person concerned to show the existence of goods that he has manufactured or received, or to offer a valid explanation for their absence. Acceptance of the meaning attributed to it by the Commissioner would then necessarily lead to the conclusion that there are two provisions in the rules for dealing with the same contravention, rule 173q and rule 226. The later rule provides for confiscation of goods that are not entered in the account to be maintained by a manufacturer. It is this rule that in fact should have been applied and had it been cited in the show cause notice, I would have upheld the confiscation However, the show cause notice does not propose confiscation under Rule 226. It does not even cite it. In these circumstances, I am unable to interfere with the order of the Commissioner (Appeals).
3. Appeal dismissed.