2005 (9) TMI 402

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....    Confirmed a demand of duty of Rs. 52,000/- under Section 11A of the Central Excise Act, 1944, which had already been paid; (ii)    Confirmed demand for duty of Rs. 4,583/- under Section 11A of the Central Excise Act, 1944; (iii)   Confiscated the goods worth Rs. 2,28,616/- seized on 15-3-2003 under Rule 28 of the Central Excise Rules, 2002, simultaneously, giving an option to redeem the seized goods on payment of fine amounting to Rs. 50,000/- in lieu of confiscation under Rule 30, ibid; (iv)   Imposed a penalty of Rs. 56,583/- under Section 11AC of the Central Excise Act, 1944; (v)     Imposed another penalty of Rs. 50,000/- EACH on Shri Jayeshbhai Chiman....

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....l of inputs/raw materials in statutory records is clearly suggestive of clandestine production and removal. In my view non accountal of inputs/finished goods without any tangible explanation would lead to the suggestion that they were in the state of preparation for commissioning of offence of evasion. In this regards, I rely upon the decision of Hon'ble Tribunal in case of M/s. Ess Kay Polymers - 2004 (165) E.L.T. 566 (Tri. - Delhi) and Jayaswals Neco Ltd. - 2004 (165) E.L.T 570 (Tri.-Mumbai) wherein it is held that "unaccounted goods lying in factory premises-mens rea not required to be proved and confiscation can be ordered invoking Rule 173Q of erstwhile Central Excise Rules, 1944". Further, the appellants invoice making clearly contrar....

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....e goods in question and therefore the penalty imposed on them is also justified. (b) (i) Revenue is aggrieved against the reliance of the CCE (A) on the decision of Machino Montell (I) Ltd. - 2004 (168) E.L.T. 466 (Tribunal-LB) = 2004 (62) RLT 709 (Larger Bench). (ii) While assessee & power of attorney holder has urged the grounds (a)      The proprietary firm and power of attorney holder for the firm cannot be penalized simultaneously. (b)      The invoice nos 206, 207, 208 & 209 which involve duty of Rs. 42,389/- while an amount of Rs. 52,000/- was deposited as duty before issue of notice & there is no evasion as on the said invoices duty was to be paid again on ....