ORDER
K. D. Mankar, Member (T)
1. The Commissioner of Central Excise challenges the findings contained in the order in appeal of the Commissioner Central Excise (Appeals).
2. It was alleged that, at the time of visit of the officers to the respondent’s factory on 28/7/95, certain goods in fully finished form were found without making the required entries in the RG 1 record. The adjudication resulted in confiscation of the excess goods, which were seized, with an option to pay redemption fine of Rs. 70000/-, and confirmation of the duty on the seized goods, and imposition of a penalty of Rs. 20,000/- under Rule 173Q on the manufacturers and Rs. 5000/- on Shri Dhiraj J. Trivedi, Chief Accountant.
3. On respondent’s appeal to the Commissioner (Appeals), the penalty was reached to Rs. 2000/- being the maximum under Rule 226 for non entry. It was also held that the goods being not liable-to confiscation, no redemption fine could be imposed and the same was set aside. The penalty imposed on the Chief Accountant was also set aside.
4.The revenue are challenging the aforesaid findings of the Commissioner (Appeals).
5. The learned Counsel for the respondents pleads that there is no violation and supports the findings contained in the order of the Commissioner (Appeals).
6. The learned D.R., however, opposes these and pleads that the impugned order be set aside being against the express provisions contained in Rule 173 Q of the Excise Rules 1944.
7. I have considered the rival submissions. There is no controversy to the fact that excess goods were found in the factory premises un-recorded in the RG 1.
8. Provisions of 173Q (1)(b) are very clear. Rule 173Q (1)(b) is attracted when the manufacture does not account for any excisable goods manufactured, produced or stored by him. In terms of the said rule, such goods are liable to confiscation and manufacturers are liable to penalty. The plain provisions of the Rule, have to be given effect, rather than by ascertaining the fact as to whether or not there was any violation of the rule with an intent to evade payment of duty. The mere fact that the goods were present in the factory does not erase the violation of 173Q (1)(b), which accrued on account of non-accountal.
9. It must be borne in mind that the Rules provide that the manufacturer should enter in the prescribed account (RG 1), the production of goods, which have been manufactured by him as soon as possible. Non – recording of production without satisfactory explanation will certainly attract the penal provisions of the said rule and there is no warrant to go in search for ascertaining as to whether or not there was a likelihood of a potential of clandestine removal. It must be borne in mind that, non-recording of production in the RG1 creates a scope for clandestine removal and consequent duty evasion. Therefore, the rules require that the manufacturers record the production of fully finished goods in the required register, as soon as the goods are ready for making such an entry. In any individual case of marginal failure the authority may take a lenient view, but that does not automatically mean that violation of this nature without any explanation can be condoned and in all cases it must be held that the goods found in the factory, in excess of recorded of production can not be subjected to confiscation for the reason that there was no attempt to clandestine removal.
10. On these considerations, the findings contained in the order in appeal are not sustainable.
11. Accordingly, I allow the appeal filed by the revenue and consequently impugned order so far as the appeal relating to the respondents herein above is concerned is set aside.
(Pronounced in Court)