ORDER
S.S. Sekhon, Member (T)
1. These appeals, arisen from the common order, are being disposed off by this order.
2. Appellants in appeal No. E/2548 are assessees under the Central Excise Act, 1944, while in appeal No. E/2549 and E/2550/03 are the clerk and the Manager of the assessee.
3. After hearing both sides and considering the material, it is found –
a) A truck was intercepted on 31.08.2001 carrying exigible copper scrap at about 1930 hours. The weighment ship produced showed the net weight to be 9.160 MT. On locating the Manager of the assessee produced invoice No. 1229 dt 31.08.2001 with same truck number which showed a quantity of 2.510 MT with excise duty paid on it. Since this document did not cover the quantity in the truck the said goods were seized. Consequent enquiries were made. A notice issued, the seized goods were ordered to be confiscated and redeemed on a fine of Rs. 50,000/-. Duty of Rs. 1,31,902 from total amount of Rs. 1,55,844/- deposited on 31.08.2001 and 01.09.2001 i.e. before the SCN dt. 19.04.2002 was issued was appropriated. Penalty of Rs. 1,31,902/- under Section 11AC was imposed along with penalty of Rs. 20,000/- each on clerk and the Manager. Hence this appeal.
b) Since duty had been deposited much prior to the notice dt. 19.04.2002, infact in excess of the determined amount, and both sides agree that SCN issued on a plain reading, does not invoke a clear cut recital or otherwise invoking Section 11A(1) proviso, this duty demand on 19.04.2003 therefore was not required to be made due to the insertion of Section 2B to Section 11A on 11.05.2001. The notice should have restricted itself to proposals of confiscation and penalties since the amounts of duty were already discharged. In this view, no further duty demand under Section 11A were called to be determined in this case as duties not revised or short levied or not paid. Therefore, invoking the penalty clause of Section 11AC is not called for and penalty imposed is set aside in the facts of this case.
c) The confiscation of goods removed, i.e. in excess of 2.510 MT without determining the appropriate duty is however upheld and the amount of Rs. 50,000/- as redemption fine is confirmed.
d) As regards penalty on the clerk and the Manager, they being persons incharge of the assessee’s affairs, should have ensured proper determination and discharge of duty before removal. That was not done, rendering the goods liable for confiscation. By this non-feasance they have rendered themselves liable for a penalty under the Central Excise Rules. The penalty imposed on them is, therefore, confirmed on appreciating and noting the specific roles, as brought out by the Adjucator.
4. In view of the findings herein, these appeals are required to be disposed off on the above terms.
5. Therefore appeal Nos. E/2548 is to be allowed only as regards penalty under Section 11AC; appeal No. E/2549 and E/2580 are to be dismissed.
6. Ordered accordingly.