ORDER
G.N. Srinivasan, Member (J)
1. These three appeals have came up for admission along with stay petition. I propose to dispose of the appeals themselves at this stage itself.
2. The appellants M/s. Sachdeva Steel Products are engaged in the ship breaking activity. They were availing the Modvat credit. On 24-12-1996, the appellants were carrying 15.660 MTs of iron & steel scraps out of the activities carried out by them and on check it was found that the driver did not have the duplicate copy of the invoices with him. The officers accompanied the driver and went to the plot of the assessee. On check of the records it was found that the assessee not paid or debited the duty in the Central Excise records and the 3 invoices viz. 985, 986 & 987 did not suffer the excise duty. The goods as well as the lorries were seized. Statements were recorded. Show cause notice dated 21-6-1997 was issued on the ground that the driver of the truck does not have the duplicate copy of the invoices. It was also mentioned in the show cavise notice that the assessees had not paid or debited duty in the Central Excise records in respect of invoices 985 & 986. Therefore, the duty payable in respect of the 3 invoices are not reflected in the Central Excise records. Therefore, charges were made in terms of Rule 9(2) of the Central Excise Rules read with Section 11A and also action was proposed for levying penalty which resulted in the adjudication order passed by the Dy. Commissioner, whereby, he confirmed the duty of Rs. 46,683/- and imposed penalty of Rs. 50,000/- on the assessee and confiscated two trucks GJ4 T-7011 & DL1 GB 0907 with redemption fine of Rs. 45,000/- & 60,000/- respectively. He also imposed penalty of Rs. 5,000/- each on the two drivers viz. S/Shri A.L. Ahuja and M.M. Arab. The assessees took the matter on appeal before the Commissioner (Appeals) who by the impugned order reduced the redemption fine from Rs. 80,000/- to Rs. 40,000/- and reduced the penalty from Rs. 50,000/- to Rs. 10,000/-. He also reduced the redemption fine in respect of Truck No. GJ4 T 7011 from Rs. 45,000/- to Rs. 7,000/- and in respect of Truck No. DL1 GB 0907 from Rs. 60,000/- to Rs. 10,000/-. The penalty imposed on the Drivers was reduced from Rs. 5,000/- to Rs. 1,000/- each. Against the said order, appeals have been filed by the Truck Drivers as well as the Assessees.
3. Shri Maru, ld. Counsel appearing for the appellants states that the action taken by the lower authorities in this case is not warranted. He states that the guidelines as contained in Board’s circular dated 21-9-1978 indicating that the removal of goods which have been duly entered in the production records tinder cover of proper gate pass without making the correspondent debit provided there is adequate debit balance in PLA clearly covers the case.
4. Smt. Arya in reply would states that once the party found to have been violated the privisions of Rule in not updating the records and if the violators are not penalised in terms of the Act and Rules, then there may not be any difference between the man who follows the rule strictly and the man who violates the rule. She is unable to say anything about what is contained in the Board’s guidelines.
5. I have considered the rival submissions. At the outset, I would like to hold that the Board’s circular only binds on the department and not the Tribunal. It is not binding on me. I have to view it in an independent way. In the instant case, it is a fact that the Central Excise records have not been maintained properly. In respect of the 3 invoices the duty has not been suffered as reflected in the records. When this is the position, there has been violation of the Central Excise Rules. As far as the penalty is concerned, the judgment of Tribunal in the case of Reliable Enterprises – 1999 (113) E.L.T. 922 (Tribunal) has been seen. It is not the case of the assessee here that they are new in the field and they do not have the experience staff, as it has been happened in that particular case. I have also seen the judgment of the Government of India in the case of Dhampur Sugar Mills Ltd. -1990 (46) E.L.T. 400 (GOI). The Government has taken a decision under the circumstances of that case not to impose penalty. I am of the considered view that there should always be a difference between man who follows the law and man who violates the law. The penalty here is of civil in nature and not in criminal in nature. The fact revealed is that the assessees have not maintained the records properly. The explanation given by Shri Maru does not convince me. I am, therefore, of the view that in this case there has been a violation. As far as the seizure of the vehicles is concerned, I am of the view that how could the lorry drivers come to know of the violation. I, therefore, allow the appeals of the Drivers. I order release of the vehicles. I dismiss the appeal of the Assessee.
6. In view thereof, stay petitions also stand disposed of.