ORDER
J.H. Joglekar, Member (T)
1. The appellants are not present. The intimation sent to the Consultant has been returned back. On earlier occasions also none represented the appellants. The appeal, is, therefore, being taken up for disposal on perusal of the submissions in the appeal memorandum and after hearing Shri Pardeshi, DR for the Revenue.
2. The appellants were engaged in processing of grey man made fabrics. In a search of their premises, the officers found stock of processed fabrics which was not recorded in the statutory registers. They also found evidence indicating removal without payment of duty of Rs.82,918/-. After issue of show cause notice and after hearing the parties, the Collector of Central Excise, Surat passed orders confiscating the goods, confirming the duty and imposing fine and penalty on the appellants. Hence, the appeal.
3. In the appeal memorandum, it is claimed that the mere existence of unrecorded goods does not suggest intention to remove. It is claimed that the department had not discharged the burden of establishing clandestine removal.
4. I have gone through the impugned order. The charges of illegal removal basically comes from shortage in the stock. There was no satisfactory explanation given by the assessee. No worthwhile arguments were made in the appeal memorandum. The orders confirming the duty short levied are, therefore, valid and are upheld. As regards the orders of confiscation and imposition of penalty, I find that the ld. Collector has preferred to rely upon the Gujarat High Court judgement in the case of Maheshwari Mill Ltd. even where the Delhi High Court judgement in the case of Pioneer Silk Mills was placed before him. In the Tribunal’s order reproduced in (1999 (33) RLT 987) it has been made very clear that the ratio of the Maheshwari Mills Ltd. judgement does not concern with or alter the ratio of the Pioneer Silk Mills Judgement. On this ground the Tribunal refused to refer the point of law under Sec.35H of the Act to the Supreme Court. In all the cases, the Tribunal has been following the law as laid down in the case of Pioneer Silk Mills. I, therefore, hold that the orders of imposition of fine and penalty on the appellant can not sustain.
5. In the result, the appeal is allowed in part. The orders of confirmation of duty are upheld. The orders imposing penalty and fine are set aside.