Customs, Excise and Gold Tribunal - Tamil Nadu
M/S Gulab Chand Silk Mills vs Commissioner Of Central Excise, ... on 30 August, 2001
ORDER
S.L. Peeran, Member (Judicial)
1. By this application, the appellant is seeking for restoration of the appeal which was dismissed on the ground that the notice issued by the Tribunal have come back endorsed by post office as "addressee left" and as there was no fresh address available the matter was dismissed in terms of the Apex Court judgment rendered in the case of CCE Vs. Electrolytic Foils Ltd. as reported in 1997 (91) ELT 547. Ld. Consultant submits that the appellant's address has since changed and he has filed an affidavit explaining the reasons for non-services of notice. He seeks for recall of the order and to hear the appeal.
2. Heard Ld. DR.
3. Considering the fact that the appellant have now appeared and have furnished the address for service of notice, therefore, the final order No. 179/2001 dated 25.5.2001 is recalled and appeal is restored to its original number.
4. Ld. Consultant seeks hearing of the appeal and DR has no objection. The appeal is taken up for hearing. He submits that the redemption of fine of Rs.1 lakh is not imposeable which has been confirmed by the Commissioner (Appeals). He submits that an excess stock of 23549.45 Lmts of 86 cms width of grey fabric and 22402.70 Lmts. of 112 cm width of Fabrics in process in excess of the recorded Book Balances. It was not excess as according to the Form IV register.
5. He submits that when goods are lying within the factory at raw-material stage, itself it cannot be confiscated under Section 173(Q) as laid down by the Andhra Pradesh High Court in the case of Southern Steels Ltd. Vs. UoI 1979 (ELT) J402. He also relies on the final order No. 106/2001 dated 5.1.01 wherein the appeal of the Revenue was dismissed in the case of CC, Hyderabad Vs. M/s. Sundar Silk Mills Pvt. Ltd. on an identical issue. He submits that both the judgments clearly apply to the facts of the case. He points out that in that case also redemption find had been imposed as Rs.1 lakh by the original authority and penalty of Rs.25,000/- The Commissioner (Appeals) in that case had set aside the fine and reduced the penalty to Rs.2,000/- but had not applied the same ratio in the impugned order so far as their case is concerned. The Tribunal dismissed the Revenue's appeal seeking for restoration of redemption fine of Rs.1 lakh.
6. Ld. DR Shri, Jayachandran submits that raw material had been found in excess and the same is liable to be confiscated and there is no infirmity in the order.
7. On a careful consideration of the submissions, we notice that the same Commissioner, Hyderabad in another identical case of M/s. Sundaram Silk Mills had set aside the redemption fine of 1 lakh and had reduced the penalty from Rs.25,000/- to Rs.2,000/- The Revenue was aggrieved with the said order and had filed the appeal in E/1982/98 which was dismissed by final order No.106/2001 by upholding the Commissioner's order. The findings noted by the Tribunal in para 3 & 4 is noted below:-
"On a careful consideration of these submissions, we notice that the Asstt. Commissioner himself has noted that the inputs is grey cloth and it was exempted from duty. The violation was with regard to non-entry in R.G.1 register timely. The Commissioner has noted that the goods cannot be confiscated and set aside the redemption fine of Rs.1,00,000/- Noting that it was only a minor discrepancy in maintenance of accounts he reduced the penalty amount of Rs.25,000/-. We notice that for the purpose of non-maintenance of accounts and proper entries in R.G.1 register, Rule 226 lays down maximum penalty of Rs.2,000/- This view has been expressed by the above cited judgment. Therefore, the view taken by the Commissioner to set aside the confiscation of fine is upheld and the contention of the assessee in cross appeal to reduce the penalty of Rs.2,000/- is accepted. The Commissioner's order is modified accordingly.
The Revenue appeal is rejected. The Cross Appeal is allowed by modifying the Commissioner (Appeals) order by reducing the penalty of Rs.2,000/- (Rupees two thousand only)."
8. We notice that in this case, the Commissioner has not taken a consistent view but has confirmed the redemption fine of Rs.1 lakh but had given relief only on penalty. We notice that the earlier order of the Commissioner in Sundar Silk Milks Pvt. Ltd. was challenged by the Revenue and the Tribunal's by its final order No.106/2000 dated 5.1.2000 has dismissed the Revenue's appeal and the ratio of the judgment in the case of CC Vs. Sundar Mills Pvt. Ltd. is applicable to the present case. Further, the judgments of the High Court of Andhra Pradesh in the case of Southern Steel Ltd. (supra) also supports the appellant's case. Applying the ratio of these judgments we hold that no seizure of the inputs can be ordered and confiscation ordered is not proper in terms of Section 173(Q). In view of the these two judgments, the Bench is of the considered opinion that appellants have made out a case on merits and hence the impugned order in so far as the imposition of redemption fine of Rs.1 lakh is set aside by confirming the penalty of Rs.2,000/- which is not challenged before us. The appeal is disposed off accordingly.
(Order pronounced and dictated in open court)