RG 23D register requirement did not apply to goods meant for non-modvatable invoices, so penalty and confiscation failed.

A registered person was not required to make RG 23D entries for consignments received under Rule 52A invoices where the goods were intended to be sold on non-modvatable invoices. The Board's circular under the Central Excise Rules, 1944 expressly exempted such consignments from the register requirement, so the department's invocation of non-entry as a breach failed on the facts. As a result, confiscation and penalty could not be sustained, and relief was warranted.

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Issues: Whether the assessee was required to enter the goods in RG 23D register when the goods were received under Rule 52A invoices but were not intended to be sold against modvatable invoices, and whether penalty and confiscation could be sustained for non-entry in the register.

Analysis: The Board's circular issued under the Central Excise Rules, 1944 expressly permitted a registered person not to enter in RG 23D the particulars of consignments for which modvatable invoices were not to be issued. The goods in question were intended to be sold on non-modvatable invoices, and therefore the statutory record requirement invoked by the department did not apply on the facts. In these circumstances, the non-entry could not be treated as a breach attracting confiscation or penalty.

Conclusion: The penalties and confiscation were not sustainable, and the assessee was entitled to relief.

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