1992 (2) TMI 246

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....itself was taken up for hearing, because of the fact that the facts to be considered in the stay application are the same as for the appeal and they fall within a short compass. 3. The appellants are manufacturers of cranes. They have removed a consignment of E.O.T. crane loaded in a truck on 18-3-1990 vide gate pass No. 64. It is reported that the crane could not be rebalanced while the truck was going on the road and hence the truck was brought back to the factory at about 5 p.m. on the same day. The consignment was rebalanced and finally the truck left the factory at about 3 a.m. on 19-3-1990, when it was intercepted by the Central Excise officers and it was found that the gate pass showed the time of removal as 3 p.m. whereas it was ....

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....e gate pass, there is no justification for ordering confiscation and imposing penalty under Rule 173Q. He contended that the duty has been paid and goods removed out of the factory, and the goods had to be brought back to the factory only because the goods got imbalanced after going out of the factory and after rebalancing the truck left the factory on the following day. This could not be construed to be a fresh removal without a proper gate pass. There cannot be any contravention of Rules even for alleging detention/bringing back the duty paid goods. The facts indicated clearly pointed out that the consignment had been brought back to the factory after 5 P.M. on 18-3-1990 and hence no intimation could have been given to the Central Excise ....

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....ve been made to locate the first consignment under the same gate pass so as to establish that this was second consignment which was being removed. In the statement of Shri Nandkumar and Shri Shyamrao Kadam it has been clearly stated that the material of top of the truck was imbalanced, the truck was brought back for adjusting the same." In the circumstances, once the above fact is established and accepted, the removal of the same consignment, because of certain imbalance in the loading of the consignment in the truck, which necessitated bringing back the crane to the factory cannot be construed as a fresh removal in contravention of the provisions of Rule 52A. If the findings of the Addl. Collector are different to the effect that this i....