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TAXAP/1085/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1085 of 2007
==========================================
COMMISSIONER
OF CENTRAL EXCISE - Appellant(s)
Versus
INMARCO
INDUSTRIES MAINTENANCEPVT. LTD. - Opponent(s)
=========================================
Appearance :
MR
HARIN P RAVAL for Appellant(s) : 1,
None for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 21/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
The
appellant ? Revenue has proposed the following three questions :
?S[A] Whether
the Hon’ble CESTAT was justified in upholding Commissioner
[Appeals]’s order inasmuch as setting aside the order for
confiscation of seized goods and imposition of redemption fine?
[B] Whether
the Hon’ble CESTAT was justified in upholding the order of the
Commissioner [Appeals]’s order inasmuch as reducing penalty imposed
on the respondent under Rule 173-Q[1] of Central Excise Rules, 1944
for non-accountal of goods in RG-I Register?
[C]
Whether the Hon’ble CESTAT was justified in upholding the
Commissioner [Appeals]’s order that the revenue has no proof that the
entry in RG-1 Register was not made with the intent to evade the
payment of duty and, therefore, penalty imposed under Rule 173Q[1] of
Central Excise Rules, 1944, was not warranted???
Heard
the learned counsel for the appellant. He has invited attention
to the findings recorded by the adjudicating authority in the
Order-in-Original, to submit that contrary findings recorded by the
Commissioner [Appeals] and confirmed by Tribunal, are not correct.
On
18.6.1997, the officers of Central Excise Department visited the
premises of respondent assessee and carried out stock verification.
According to the adjudicating authority, there was shortage of stock
when compared with RG-I Register and excess stock was also found on
the premises which had not been entered in RG-I Register. The
explanation of the respondent assessee, both before the adjudicating
authority and the Commissioner [Appeals], is to the effect that the
panchnama was drawn up in absence of panchas who have filed
affidavits to the said effect. That for the purposes of shortage,
explanation was tendered in response to the show cause notice and
the Department was requested to re-verify the same as the same was
explainable in light of the entries made in the RG-I Register.
Insofar as the excess stock is concerned, the explanation was that
Shri D.P.Gohil, Project Manager was absent and hence, entries could
not be made in RG-I Register, because the employee present, one Shri
Mayur Vashi was new to the job and was not conversant with
maintenance of RG record.
The
Commissioner [Appeals] has recorded the findings as under :
?S[4] I
have considered the matter and I find –
[a] It
is the appellants own submission in his reply to the SCN and which is
made a ground in appeal that the shortages could be explained and I
accept the same as explained in this reply. However, in the same
reply, it is an admitted position that the certain quantities
remained unentered in the RG1 due to the fact that Shri D.P.Gohil,
Project Manager was absent and Shri Mayur Vashi was new and could not
properly record the RG1. I also agree with the submission that there
was no preparation for clandestine removal nor any established in
this case.
[b] In
view of the same, I do not find any reason to order the confiscation
under Rule 173Q(1). However, a penalty could be imposed for non
entry in the RG1 and I reduce the penalty to Rs.2000/- under Rule
173Q(1) which is the maximum prescribed under 226 for non entry.
Since, I am not in a position to establish any removal as the
shortages are explained, no duty could be confirmed on the shortages
as found in the OIO. Since, no duty on clandestine removal is being
determined Section 11AC cannot be invoked. Therefore, no mandatory
penalty under Section 11AC is called for. I do not find any reasons
to impose a penalty under 209-A on the Project Manager.??
The
aforesaid findings have been confirmed by the Tribunal.
In
the aforesaid set of facts and circumstances of the case, it is
apparent that the evidence has been appreciated both by the
Commissioner [Appeals] and the Tribunal, and thereafter, findings of
fact have been recorded.
In
the circumstances, in absence of any infirmity in the order made by
Commissioner [Appeals] and confirmed by the Tribunal, the impugned
order of tribunal does not give rise to any question of law, much
less a substantial question of law. The appeal is, accordingly,
dismissed.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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