Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Customs And Central ... vs Regency Ceramics Limited on 6 December, 2006
Equivalent citations: 2007(210)ELT410(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with the portion of the Commissioner (Appeals)'s order inasmuch as having upheld the findings of the Original authority pertaining to excess physical stocks found as per Mahazar dated 29.01.1991 in the factory to an extent of 3423 cartons worth Rs. 4,56,705/- found in excess over RGI at the factory, and having imposed penalty of Rs. 25,000/- for such contravention, has given relief by not confirming the Order-in-Original pertaining to confiscation of goods, imposing RF to an extent of Rs. 1,00,000/-. The original authority imposed Rs. 1,00,000/- fine on confiscation of goods which were found excess in the factory premises and also at the Calcutta premises. The confiscation of goods at Calcutta premises has been held to be unsustainable by the Commissioner (Appeals). This portion of the order is not challenged. The Revenue contends that the excess stock of 3423 cartons worth Rs. 4,56,705/-found in excess over RG-1 at the factory was required to have been confiscated and RF imposed and relief should not have been granted.
2. I have heard the learned JDR.
3. The learned JDR points out that the appellants are in the habit of clandestinely removing the goods without payment of duty and this is not the first case against them. He relies on the Final Order No. 1869/2004 dated 29.11.2004 in assessee's own case wherein this very bench has upheld the confiscation of unaccounted stock seized on 01.08.1991 valued at Rs. 24,78,850/-. The RF has been reduced to Rs. 10,000/- and penalty to Rs. 10,000/-. He submitted that this ruling is based on the earlier ruling of the Delhi Bench rendered in Venus Rubber Industries v. CCE, New Delhi wherein in a similar circumstance, excess goods found, which had not been accounted in their RG-1 Register was held to be confiscable and fine and penalty had been imposed. He relies on the following rulings wherein in similar circumstances, confiscation of unaccounted goods had been upheld and RF had been imposed therein.
(i) Multiplex Packaging(P) Ltd. v. CCE, Bombay ;
(ii) Autolite (India) Ltd. v. CCE, Jaipur
(iii) CCE, Delhi v. Universal Auto Products Ltd.
(iv) Giriraj Hydraulics Pvt. Ltd. v. CCE, Raipur 2004 (96) ECC 481 (T)
(v) Jindal Strips Ltd. v. CCE, Rohtak 2004 (94) ECC 433(T)
(vi) Friends Auto (India) Ltd. v. CCE, Faridabad He prays for passing an order holding that the excess goods found in the factory is liable for confiscation in terms of Rule 173Q and impose RF appropriately.
4. The learned Consultant tries to justify the non-imposition of RF by the Commissioner (Appeals) by reading the findings given by the Commissioner(Appeals) in para 10 of the order. He relied on the rulings rendered in the following cases:
(i) Bhillai Conductors (P) Ltd. v. CCE, Raipur 2000 (125) ELT 781 (T)
(ii) Sumeet Industries Ltd. v. CCE, Surat
(iii) Jayshree Plastics v. CCE, Raipur .
The learned Consultant prays for dismissal of the appeal.
5. I have considered the submissions. On examining the provisions of Rule 173Q, it is clear on reading of the Rule 173Q(1)(b) that where excisable goods manufactured, produced or stored are not accounted, then such goods shall be liable to confiscation as the case may be, and the manufacturer, producer, registered person of a warehouse or a registered dealer shall be liable to a penalty not exceeding three times the value of the excisable goods in respect of which any contravention of the nature referred to in the said section has been committed, or five thousand rupees, whichever is greater. In terms of Section 34 of the CE Act, the goods which have become confiscable can be granted redemption on payment of fine in lieu of confiscation as adjudged under this Act or Rules made thereunder, by the officer adjudicating it, to pay fine in lieu of confiscation as the officer thinks fit. The original authority has imposed a combined fine of Rs. 1,00,000/- for confiscating the goods found in the factory of the respondent at hand and at Calcutta. In terms of the citations referred to by the learned JDR, the stock found in excess in the factory are required to be confiscated. The value of the goods had been found to be Rs. 4,56,705/-. I am of the considered opinion that the stocks found in excess at the factory were required to have been confiscated and RF imposed. The order of the Commissioner (Appeals) is not sustainable. The Commissioner (Appeals), having found the stock in excess and having reduced the penalty to Rs. 25,000/-, should have also fixed the RF on the goods which were confiscable. The confiscation is upheld and the Redemption fine is fixed at Rs. 40,000/- which is less than 10% of the value of the goods, in terms of the practice of the Tribunal.
5.1. Now, coming to the case-laws relied by both sides, it is seen that the respondent had committed offence on an earlier occasion also. By Final Order No. 1869/2004 dated 29.11.2004, the excess stock of goods valued at Rs. 24,78,850/- were seized by Mahazar on 01.08.1991. The RF imposed was confirmed. However, it was reduced by this Bench. In view of the consistent practice of the respondents in indulging in this practice, they are not required to be given any concession but to be imposed with RF as fixed and confirmed supra. In so far as the citation referred to by the learned Consultant, it is seen that in the case of Bhillai Conductors (P) Ltd. (cited supra), the majority order found that there was no evidence of non-accountal of goods in the factory with an intention to evade payment of duty. This is clearly distinguishable. In the case of Sumeet Industries Ltd. (cited supra), the Single member of Mumbai Bench also found in the facts of the case that due to the holiday falling on the next day of the production, there was delay in entry in the Register. He found the circumstances for accepting the explanation that in view of the next day of production being holiday and when they were about to enter on the subsequent day, the excise officers had visited and seized the goods. Similar findings have been recorded by the Calcutta bench in Jayshree Plastics (cited supra). Thus, the judgments are clearly distinguishable. The citations referred to by the learned JDR are clearly applicable to the facts of the case. The appeal is allowed by fixing the RF at Rs. 40,000/- as ordered supra.
(Pronounced and dictated in open Court)