J.H. Joglekar, Member (T)
1. The applicants manufactured pesticides. On 21-3-1994 they applied for maintaining computerised records of production clearances of excisable goods and thereafter maintained records in that format. At the end of the day would take a printout day’s (sic) of the based transaction and make manual posting in the registers maintained. On 14-11-1997 the officers went to the factory and found that the manual entries had not been made. The explanation given by the factory personnel was that the printer was not working and therefore the printout could not be taken even then this was taken to be a contravention and formed an allegation in the notice later issued. The officers also found some pesticides lying in the factory premises. It was claimed by the assessees that they were defective goods returned which would be used by them as inputs claiming credit of the duty already paid thereupon. The procedure was reflected in the declaration filed in terms of Rule 57G of the Rule, by them earlier. The show cause notice alleged that for such receipt the procedure under Rule 173H shown have been followed. After issue of the show cause notice and hearing the assessee, the Commissioner passed the impugned order. He confiscated the goods but allowed their redemption and imposed penalty. For non-maintenance of the records in the manual format. He imposed a penalty of Rs. 2 lakhs. For not following the procedural requirement under Rule 173H, he imposed a penalty of Rs. 5,000/-. The assessees filed an appeal and the present application for 0waiver of pre-deposit of the penalties they also have sought stay of the order of the confiscation of goods.
2. We have heard Shri Vijay Agarwal the ld. CA for the applicants and Smt. Reena Arya for the Revenue.
3. We find that the assessees were given permission to maintain the computerised records. The only failure on their account was to generate the summary and to make the entries manually. Infact if would appear that after having permitted them to maintain computerised records, there would be no need for maintenance of manual records also. In these circumstances, prima fade we find that there is no requirement for imposition of penalty. We also observe that the department had accepted the declaration under Rule 57G which clearly indicated their own final product, as the input. Not having questioned that, on the observation that the receipt should have been produced under Rule 173H, prima facie suggest excessive force. We therefore grant waiver of pre-deposit of the penalties.
4. As regards the request for stay of the order of confiscation we have two observation. Firstly this is not in the ambit of Section 35F of the Act, and secondly that any discussion leading to determination of the propriety of such orders would amount to final disposal of the appeal which we are not required to do use at this stage. No orders are passed on this prayer.