2018 (4) TMI 950

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....ne. The impugned order also confiscated goods valued at Rs. 25,76,848 under rule 173Q (1), with option for redemption on payment of fine of and imposed penalty of under rule 173Q (1) of Central Excise Rules, 1944. The matter had been adjudicated in the first instance on 21st of August 1996 confirming the proposals in the show cause notice against which appeal was filed with the Tribunal leading to remand back to the adjudicating authority for ascertainment of the availability of sufficient credit after excluding the ineligible credit for according the benefit of exemption extended to such goods under notification no. 15/94-CE and the benefit of such to goods under seizure. Aggrieved by the de novo adjudication, appellant is before us. 2. T....

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....l detriment was to be restricted to circumstances of deficit of credit. It is his further contention that, with the specific finding of availability of sufficient credit for reversal, and entitlement for exemption from duty, it was erroneous on the part of the adjudicating authority to confiscate the goods, to subject them to redemption on payment of fine and to impose penalty. Reliance was placed on the decision of the Hon'ble Supreme Court in Hindustan Steel v. State of Orissa [1970 (SC) 253] and in Cement Marketing Corporation v. Union of India [1950 (6) ELT 295], that of the Hon'ble High Court of Madras in DCW Ltd v. Assistant Collector of Central Excise, Tuticorin [1996 (88) ELT 31 (Mad)] and a host of decisions of the Tribunal....

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....t Rule 173Q being a penal clause, intention is in-built in it and therefore, mens rea of the appellant to evade payment ofduty must be established Learned counsel for the appellant placed reliance upon the decision rendered in the case of Akbar Badrudin Giwani v. Collector of Customs, Bombay reported in (1990) 2 SCC 203 1990 (47) E.L.T. 161 (S.C.). In the said case, Hon'ble Supreme Court was considering the confiscation and penalty under Sections 111 (d) and 112 of Customs Act, 1962 and held that mens rea must be established for confiscation and penalty. 18. In the facts and circumstance of the instant case, the above decision rendered in the case of Akbar Badrudin Giwani does not apply. As pointed out earlier, show cause notice was i....

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....s there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to show that a default to comply with the Rules has occurred attracting confiscation and penal provisions. There is nothing in Rule 173Q or Rule 209, which required that mens rea/intention need to be established. The Court cannot read anything into the statutory provisions or stipulated conditions, which are plain and unambiguous. The Legislature used the conjunction "or" in Rule 173Q for Rule 173Q(1)(a) and Rule 173Q(l)(d), the Court cannot read into Rule 173Q(1)(b) that there should be the intention to evade payment of excise duty. There is no merit in the contention of the appellant that mens rea of the....