TaxTMI 
TaxTMI 
2006 (7) TMI 388
X X X X Extracts X X X X
X X X X Extracts X X X X
....t in E/862/99) and others. Upon completion of investigations, the department issued a show-cause notice to the above parties as well as to Sri P.C. Ravichandran (Director, Globe Rexin Pvt. Ltd) [appellant in E/831/99] and Sri K. Sukanraj (Partner, Rexin Sales Corporation) [appellant in E/863/99], for confiscation of the seized goods and imposing penalties on the noticees. The notice was contested. In adjudication of the dispute, ld. Commissioner passed an order, the operative part of which reads as under :- "1. I order confiscation of 382 rolls of CCF measuring 10,449.800 mtrs valued at Rs. 3,31,284/- seized from M/s. Globe Rexin (P) Ltd., on 19-2-97 under Rule 173Q of Central Excise Rules, 1944, but give an option to M/s. Globe Rexine (P) Ltd., to redeem the same within 90 days on payment of fine of Rs. 30,000/- (Rupees Thirty thousand only). On redemption the quantity should be accounted for in the RG-1 Register. 2. I order confiscation of 104 rolls of CCF measuring 3348 mtrs. valued at Rs. 1,20,528/- seized from M/s. Rexine Sales Corporation on 20-2-97, under Rule 173Q of C. Ex. Rules, 1994, but give an option to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 5,000/- on Shri Vijay M. Bafna partners of M/s. Rexine Sales Corporation under Rule 209A of C. Ex. Rules, 1944. 7. I also confiscate plant and machinery of M/s. Globe Rexine (P) Ltd. However, I give an option to M/s. Globe Rexine (P) Ltd. to redeem the same on payment of redemption fine of Rs. 2,000/-." These appeals are directed against the above order. 2.  Ld. Counsel raises a "preliminary" objection, which is to the effect that the Commissioner's order received by the appellants did not carry the Commissioner's signature and hence the same was not valid in law. The copies of the order available on record are also copies attested by the Superintendent. On an earlier occasion, we wanted to see the original records and, accordingly, directed SDR to produce the same. It is reported that the original records are not traceable on account of reorganisation of Commissionerates in the Department. Ld. Counsel wants us to record adverse inference against the department on account of non-production of records. In this context, he relies on the Tribunal's Larger Bench decision in Harichand K. Khanna v. CCE, Surat, 2000 (150) E.L.T. 1323 (Tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Globe Rexine Pvt. Ltd. It is nobody's case that Rule 173Q (providing for confiscation of goods and imposition of penalty on manufacturer) could not have been invoked for confiscation of goods seized on the ground of non-accountal in RG-1. Hence we have no option but to uphold the confiscation of 382 rolls of CCF, ordered by the Commissioner. However, a fine of Rs. 30,000/- imposed by him does not appear to be reasonable, having regard to the fact that no attempt was found on the part of the above company for clearing the goods without accountal. In our assessment, a fine of Rs. 15,000/- (Rupees Fifteen thousand only) would suffice. 5. Ld. Commissioner ordered confiscation of 104 rolls of CCF seized from the premises of M/s. Rexine Sales Corporation, this, again, under Rule 173Q. In this connection, a fine of Rs. 10,000/- was imposed for redemption of the goods by the said party. Ld. Counsel submits that M/s. Rexine Sales Corporation was neither a manufacturer of the goods nor a registered dealer thereof and hence Rule 173Q was not invocable against them. It is claimed that M/s. Rexine Sales Corporation were only unregistered dealers, to whom the said Rule cannot apply. That....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration? It is settled law that a finding of clandestine removal of excisable goods should be based on positive evidence to be gathered by the department. This evidence is missing in this case. Hence we are unable to sustain the confiscation order in respect of 346 rolls of CCF. Consequently, the fine of Rs. 25,000/- imposed on M/s. Rexine Sales Corporation also will get set aside and no penalty will flow from the illegal confiscation of the above goods. 7. Now we shall turn to penalties. A total penalty of Rs. 1,17,083/- was imposed on M/s. Globe Rexine Pvt. Ltd under Section 11AC of the Central Excise Act. Out of this, an amount of Rs. 30,132/- is relatable to duty payable on 104 rolls of CCF. We are told that this amount of duty was paid by the party prior to issuance of the SCN. Therefore, this part of the penalty is unsustainable. The balance amount is Rs. 86,951/-, which is relatable to duty payable on 346 rolls of CCF. We have already found that no penalty can be imposed on any of these parties in relation to the 346 rolls of CCF for want of evidence. In the result, the entire penalty of Rs. 1,17,083/- will get vacated. There is a separate penalty of Rs. 10,000/- impo....