ORDER
Jyoti Balasundaram, Member (J)
1. By the impugned order, the Commissioner of Central Excise, Delhi has :
(a) confirmed a duty demand of Rs. 9,770/- on finished goods (shock absorbers for two wheelers and four wheelers) found short on 17-9-1993 by the Central Excise officers and confiscated excess stock of finished goods valued at Rs. 7504/- involving duty liability of Rs. 1501 /-, with option to redeem the same on payment of fine of Rs. 1500/-.
(b) confiscated finished goods valued at Rs. 98,574/- seized at the time of visit, which the assessees claimed as rejected goods returned by the customers, with option to redeem on payment of a fine of Rs. 25,000/-;
(c) confirmed an amount of Rs. 19,98,179/- under Rule 57(1) on shortage of inputs on which Modvat credit had been availed and
(d) imposed a penalty of Rs. 2 lakhs under Rule 173Q of the Central Excise Rules, 1944.
2. We have heard Shri J.P. Kaushik, learned Counsel and Shri D.K. Nayyar, learned DR and record our findings on the issues as under :
(I) Excess and shortage of finished goods : The following items were found short in excess as compared to the last balance recorded in RGI register:
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Description of Balance Stock Diff value C.Excise
Goods as per per phy (-) (+) @ 20% duty
RGI veri.
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198 HHFF (Hero 1394 1352 42 27090 5418
Honda Front Fork)
Hero Honda (Rear 421 432 - 41 2112 422
Cushion sleek)
P. 11 Rear Cushion 660 675 - 15 2912 582
Kinetic Honda 1563 1377 186 - 21762 4352
Front Cushion
Bajaj Kawasaki Rear 1533 1549 - 16 2480 496
Cushion
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The explanation of the Senior Excise officer of the appellant company at the earliest point of time viz. during the course of recording of his statement, is that goods were in excess because the production had not yet been entered into RGI because the production slips (movement books) had not reached the Excise store-room and shortage was due to the fact that, while production slips [movement (sic.)] reached the Excise store-room and entries in RGI register were made on that basis, the goods were physically moving from the production floor to the Excise store-room but had not physically reached the store-room. There was no evidence on record to disapprove the stand of the appellants on the excess or shortage of finished goods and further there is no corroborative evidence to establish clandestine removal and therefore, we hold that the Department has not discharged the burden of proving clandestine removal of final products. We therefore, set aside the duty demand on finished goods found short and set aside the confiscation of excess stock of finished goods.
(II) Finished goods claimed to be rejected goods : The appellants have stated that defective goods were sent back to their factory and they were not capable of being repaired and hence they were mutilated and converted into scrap which was being cleared on payment of duty. They have categorically stated that the Original Equipment dealers were returning defective items to them and dealers were replacing the defective goods to the customers from their stock of spares. The appellants defence that they were not clearing any of the defective goods as such, has not been rebutted by the Department. Non-filing of D-3 intimations for these goods is not by itself sufficient to confirm the charge of clandestine removal. Therefore, the evidence on record is not sufficient to hold that the appellants were keeping excess stock with the intention to remove the same without payment of Excise duty. We therefore, set aside the confiscation of finished goods valued at Rs. 98,574/-.
(III) Shortage of inputs: The appellants have been contending from the beginning that the inputs alleged to be short were lying in an adjacent plot No. 11 which also belonged to them. We find that they had acquired plot No. 11 in 1989 and in November 1990, they had filed AL-4 application in which they had also shown Plot No. 11, Maruti Industrial Area, Gurgaon. In July 1992, they applied afresh for registration of licensed, premises showing Plot No. 9,10 and 11, Maruti Industrial Area. Even though the registration certificate issued under Rule 174 shows only Plot No. 9 and 10, Maruti Industrial Area, Gurgaon as their registered premises, it cannot be disputed that Plot No. 11 also belonged to the appellants. The Commissioner has proceeded on the basis that inputs lying in Plot No. 11 cannot be considered as the same inputs on which the assessee had availed Modvat credit of duty. In other words, there is an implied admission that inputs were lying in Plot No. 11. Therefore, the removal of inputs from the registered premises to the adjacent unregistered premises i.e. Plot No. 11 without applying and obtaining permission for the same, is a procedural violation which cannot result in denial of substantive right to take Modvat credit. We therefore, set aside the duty demand under this heading.
(IV) As set out above, the appellants have not observed Central Excise procedure namely, they have not filed D-3 intimation in respect of the defective goods received back from their customers through their dealers and they have not intimated the Department about the removal of inputs on which credit has been taken from the registered premises to the unregistered adjacent plots.
Hence for non-observance of the Central Excise Rules, penalty is sustainable; however, having regard to the facts and circumstances of the case, we reduce the penalty to Rs. 50,000/-. The appeal is disposed of in the above terms.