ORDER
T.P. Nambiar, Member (J)
1. The impugned order has imposed a redemption fine of Rs. 3.5 crores on the goods worth about Rs. 17.25 crores.
2. The learned Advocate Shri R. Vijayaraghavan appearing for the appellants did not seriously contest about the confiscability of the same. The learned Advocate has stated that the goods have been ordered from outside and the same were erected by the suppliers in their factory. Therefore the appellants are not aware of any of the variations and even in the impugned order the learned adjudicating officer has held that the appellants never had any mens rea. He also in this connection relied on the decisions of the Tribunal reported in 1987 (29) E.L.T. 243, 1987 (29) E.L.T. 304, 1990 (50) E.L.T. 130 and 1994 (70) E.L.T. 52. He has stated that when there is no mens rea and when there are no evidence to implicate the appellants confiscation is not warranted in the facts and circumstances of the case. The case laws cited above enunciated the above principles. He accordingly prayed for an order in this regard.
3. The learned SDR Shri Victor Thyagaraj on the other hand contended that though these goods are liable for excise duty but they had never brought it to the notice of the authorities concerned in this respect. In this connection we have also brought to the notice of the learned SDR the observations of the Collector that there was no mens rea on the appellants. He has no specific plea in this regard.
4. We have considered the submissions of both the sides. It is now seen that the learned Collector in Para 14.1 of the order has clearly given a finding that he is convinced that there is nothing on record to suggest existence of mens rea on the whole affairs of the appellant. He also stated that no doubt the appellants manufactured Dragline and used captively without payment of Central Excise duty. In this view of the matter he stated that there was no intention to evade payment of duty and no evidence was brought on record to hold that such an intention existed. In these circumstances it is seen that though the goods have been liable to duty they were captively used by the appellants and there was no mens rea on their part. Therefore when duty was leviable and no duty was paid on these goods the goods are confiscable. However in respect of the redemption fine the bonafides of the appellants are to be taken into consideration. The case laws cited by the appellants is also to the effect that while imposing redemption fine the bonafides on the part of the appellants has to be taken into consideration. In this case the adjudication authority himself has come to the conclusion that there are bonafides on the part of the appellants. He has also stated that there is no intention on the part of the appellants to evade any payment of duty and no such evidence is brought on record. It is also urged before us that the appellants is a Government Undertaking of the Government of Andhra Pradesh and the goods are brought for captive consumption and not for sale. It is also not disputed that they are captively using the goods in question in their factory. Taking into consideration the facts and circumstances of the case we hold that the ends of justice will be met if the redemption fine is reduced to a sum of Rs. 1,75,00,000/- (one crore seventyfive lakhs). The appeal is accordingly partially allowed.