S.S. Kang, Member (J)
1. Heard both sides.
2. Appellant filed this appeal against the order-in-appeal whereby penalty of Rs. 50,000/- was imposed. The appellants are not contesting the demand of duty.
3. In this case, the appellants are engaged in the manufacture of MT flats. On 23-12-2001 they cleared MT flats under six invoices, but this clearance was not entered by the appellant in the daily stock register. On 24-2-2001 when the Excise Officer visited the factory, it was found that daily stock register was written up to 23-2-2001 without entering six invoices, and the closing and opening balance of 24-2-2001 was rubbed.
4. The contention of the appellant is that duty was paid prior to issue of show cause notice, therefore, they are not liable to pay any penalty. The appellant relied on the decision of this Tribunal in the case of Rashtriya Ispat Nigam Ltd. v. CCE, Vishakhapatnam reported in 2003 (161) E.L.T. 285 and appeal filed by the Revenue was dismissed by the Hon’ble Supreme Court reported in 2004 (163) E.L.T. A53.
5. The contention of the Revenue is that the clearance of the goods under the six invoices whereby 129.955 M.T. MT flats were cleared, involved duty of Rs. 2,50,840/- and the opening and closing balance on 24-2-2001 also found to be rubbed. These circumstances show the mala fide intention on the part of the appellant.
6. In this case the contention of the appellant is that duty was paid prior to issuance of show cause notice. Therefore, the imposition of penalty is not sustainable.
7. Appellants relied on the decision of Rashtriya Ispat Nigam Ltd. (supra). In this case, the assessee was manufacturing certain excisable goods which were used in the civil construction and maintenance purpose. On demanding duty by the Revenue, the appellant paid duty. In these circumstances, the goods were manufactured for the use of the civil construction and when the Revenue pointed out, the assessee paid duty. In this situation, the Tribunal held that penalty is not justified.
8. The facts of the present case are different. Here the appellant cleared the goods under six invoices on 23rd February, 2001 without entering into their daily stock register. It was also found that opening and closing balance in the daily stock register on 24-2-2001 was found to be rubbed. The reasons for this manipulation are best known to the appellant. In these circumstances, the ratio of the earlier decision relied upon by the appellant is not applicable to the facts and circumstances of the present case as the appellant contravened the provisions of Central Excise Rules, therefore, liable for penal action. In these circumstances, the appeal is dismissed.