TaxTMI 
TaxTMI 
2005 (7) TMI 248
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....nto a sputtering machine where a thin layer of aluminium is applied to the raw CD by vaccum metalising process. After this, the CD is coated with lacquer, checked for quality and then printed. The printed CD is then packed with the Inlay Cards, supplied by the customers on which the names of the customer Companies are printed and kept packed either jewel boxes or pouches on a spindle, as per the requirements of the customers. These are kept in the factory premises until they are dispatched to the customers. (ii) During the relevant period, Compact Discs, both video and audio, are classifiable under Chapter Heading 8524.90 of the Central Excise Tariff, chargeable to duty at 18% ad valorem while CD (ROM) are classifiable under Chapter Heading 8524.20 chargeable to duty as NIL rate. (iii) The officers of Central Excise Hqrs. Preventive, Mumbai-IV Commissionerate, visited the factory premises of the applicants at about 3.30 pm in the afternoon on 16-5-1997 by surprise and checked the stocks of CDs lying in the factory. They were 54,075 nos. of CD Audio, 35,939 nos. of CD ROM, which were manufactured prior to 16-5-1997 and kept in packed condition. Besides, there were 8722 nos. of....
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....cks of a kind/type were kept without entry in RG-1, with an intention to clear the same without payment of duty in contravention of the provisions under Rule 53 of the Central Excise Rules, 1944. The excess of stock also could not be satisfactorily explained by the quantity of shortage detected challenged at that time. In fact the arguments put forth by the appellants in their grounds of appeal and during the course of personal hearing seems to be an after thought and cannot be accepted. So the burden of establishing that the goods were not accounted is also not done properly & in view of the fact that the management of accounts in statutory register being a vital provision not to be condoned and penalty imposable. As laid down in the case of M/s. Mangalore Jewellery Works reported in 1998 (34) E.L.T. 267 (T) and as accounting of goods must be done according to the prescribed procedures otherwise it will amount to non-accounting, resulting in imposition of penalty (Collector v. Ultra Marine & Pigments) - 1985 (22) E.L.T. 413 (T) also. Non-posting of entries in the statutory records is liable to penalty (Nizam Sugar Factory v. Collector - 1987 (27) E.L.T. 40 (AP) & also since improp....
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....ndestine removal is on the department and not on the assessee. In self-removal procedure trust has been placed on the assessee to maintain correct records and stocks and also discharge duty liability. As such the onus to explain any difference in the stock is on the assessee. Since the assessee has failed to account for excess of stock the obvious conclusion inferred is that the assessee have cleared the goods without payment of duty. As such they have violated Rules 9(1), 173F, 173G(1) and 52A of Central Excise Rules, 1944 with an intention to evade payment of Central Excise duty. In view of the above duty is recoverable from them under Section 11(1). Further, since the goods found excess have also not been accounted these have been kept unaccounted by the assessee with an intention to clear clandestinely. Accordingly these are liable for confiscation under Rule 173Q of Central Excise Rules, 1944. Further since goods have been unaccounted for and cleared without payment of duty in violation of provisions of Central Excise Act and Rules as quoted in Show Cause Notice. Accordingly, they are liable for penalty under Section 11AC of Central Excise Act, 1944. Since Shri Rajiv ....
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.... day, has some merit and force and he should have accordingly passed the Order, setting aside the Order of the lower authorities. (iii) The seizure made by the officers of 44,661 nos. of CD was totally illegal and improper. The seizure consisted of 33,607 nos. of CD Audio and 11,054 nos. of CD Rom. While the CD Audio were taken from the stocks of 54,076 nos. of CD Audio which have already been accounted for at page 2 of the RG -1 Register, the CD ROM were taken from the stocks of 35,930 nos. of CD ROM which have already been accounted for at page 72 of the RG-1 Register. Thus the seizure of the CDs already accounted for in the records, on the ground that these have not been accounted for, is arbitary and illegal action on the part of the seizing officers. Besides, the seizure of 11,054 nos. of CD ROMs, which are non-dutiable, is totally uncalled for. On this ground alone, the Order passed by the ld. Commissioner, who upheld the Order of the lower authority, justifying the seizure made by his officers deserves to be set aside. (iv) Whereas the allegation in the Show Cause Notice, is about the non-accountal of the excess stock of goods, the ld. Commissioner, has hel....