ORDER
C.N.B. Nair, Member (T)
1. Heard both sides and perused record. It is seen that appeal itself can be disposed of. Accordingly, I proceed with the appeal after dispensing with the requirement for pre-deposit.
2. Under the impugned order, confiscation and penalty have been upheld. The offence itself is that the appellant had not entered part of its produce in the statutory record of production.
3. The submission of the learned Counsel for the appellant is that the non-accountal of the manufactured goods was because they had not been weighed before the officers visited the factory and therefore, they could not be entered in the production register. It is also being pointed out that non-entry is not the result of any intention to evade duty inasmuch as full quantity of inputs used in production had been entered in the raw material register. The submission is that once the raw material is entered in the accounts, the finished product would get accounted. Learned Counsel also has a point that quantity verification of stock was not carried out satisfactorily by the officers inasmuch as stock was determined only through eye estimation and not by actual weighment. Learned Counsel would also rely on the decision of this Tribunal in the case of Orient Cerwool Ltd. v. C.C.E. Rajkot (Order No. CI/1143/WZB/2003 dated 30-4-03) in Appeal No. E/328/99-BOM in support of the contention that penalty under Rule 173Q(1)(b) is not attracted in a case where excess material is found in the factory itself.
4. The contention of the learned SDR is that since the excess remains admitted, there is violation of rule.
5. There is merit in the appellant’s contention. The finished products were found in the factory itself and raw material had been accounted in the raw material register. In such a case, Rule 173Q, a rule under which action has been taken, is not attracted. The decision of the Tribunal in the case of Orient Cerwool Ltd. is also in favour of the appellant.
6. In view of the above factual and legal position, confiscation and penalty are set aside and the appeal is allowed with consequential relief, if any, to the appellant.
(Dictated and pronounced in open Court)