ORDER
Jyoti Balasundaram, Member (J)
1. Both the appeals relate to alleged excesses and shortage of TV sets detected during the course of stock verification in the appellant’s factory on 25-9-1986 and are hence heard together and disposed of by this common order. E/2545/89-NRB arises out of the order of Collector of Central Excise, Allahabad confiscating 131 TV sets valued at Rs. 5,89,325/- found in excess and unaccounted for in the statutory records and levying duty on 58 TV sets valued at Rs. 2,53,625/- removed clandestinely without payment of duty and imposing a redemption fine of Rs. 60,000/- in lieu of confiscation and a penalty of Rs. 12,500/-. E/2546/89-NRB has been preferred against the order of the same adjudicating authority confiscating 117 TV sets found in excess and levying duty on 50 TV sets removed clandestinely and imposing a redemption fine of Rs. 50,000/- in lieu of confiscation and a penalty of Rs. 10,000/-. E/2545/89-NRB relates to Unit EF III of the appellant, while the other appeal relates to the Unit EF II.
2. The brief facts of the case are that on 25-9-1986 the Units of the appellant were visited by the Central Excise Officers of Audit Branch and during the course of checks and stock verification certain excesses and shortage of TV sets were found. Accordingly, show cause notices proposing confiscation, levy of duty and imposition of penalty were issued. The adjudicating authority rejected inter alia the contentions of the appellant that the stocking of the TV sets had not been done in a uniform manner and that there was no excess and the shortage was of lesser quantity than that arrived at by the Department and passed the impugned orders. Hence these appeals.
3. We have heard Shri Ashok Sagar, learned Advocate and Shri B.D. Bhagat, learned DR and carefully considered their submissions.
4. There is no dispute that the stock verification report was signed by the representative of the appellant which would amount to an acceptance of the figures of excess …in clearance contained therein and, therefore, the refusal of the adjudicating authority to permit recount would still not alter the factual position of excess and shortage as recorded. The Assistant Manager of the appellant, Shri P. Khanna has tendered a statement on the date of visit that in the RG-I registers for both the Units, no entries were made for 24-9-1986 and the preceding day i.e. 23-9-1986 was a weekly off day. According to him the entries of production of the previous day was normally filled in the RG-I registers on the next day. He has further stated that the production of 24-9-1986 and the clearances effected on that day were duly taken into account while ascertaining shortage/excess and that the production of 25-9-1986 was not taken into account for arriving at the shortage/excess in stock. The learned Counsel draws our attention to a letter of the appellants dated 26-9-1986 addressed to the Assistant Collector containing figures of variation in stock as per the detailed counting carried out by the appellants on 26-9-1986 and submits that according to the appellants the shortage of TV sets is less than the shortage recorded in the stock-taking report. However, he fairly admits that there is no explanation for even the admitted shortage.
5. We see no force in the contention of the learned Counsel that the stock verification report is to be discounted, as it has been signed by the representative of the appellants and further the appellants have not offered any satisfactory explanation for the shortage detected. We, therefore, see no reason to interfere with the finding on this aspect in the impugned orders. Regarding the excess stock, the explanation of Shri Khanna regarding 27 TV sets of Model UV 606A of EF III Unit having been sent to Quality Control Laboratory for test is not substantiated by any documentary evidence. The Collector has perused the history cards of the TV sets in respect of EF-III Unit starting with a particular Sl. No. as well as corresponding entries of those TV sets in the Live Test Record Register of the Quality Assurance and Reliability Laboratory of the factory and has found that 27 TV sets sent to the Laboratory during the relevant period pertains to Model UV 606 and not UV 606A as claimed by Shri Khanna in his statement of 25-9-1986. Further the Laboratory gave a proforma note to the Production Unit at the time of taking sets to the Laboratory for testing. At no stage the proforma of note for Model UV 606A was produced by Shri Khanna as evidence in support of the stand of the appellants. The grievance of the learned Counsel that the adjudicating authority has relied on certain documents behind the back of the appellants is not well founded, as the records relied upon are those of the appellants themselves and it was open to the appellants to explain the position during the course of hearing before us and admittedly the appellants are not in a position to account for the excess detected. Hence, we see no ground to interfere with the finding on this aspect.
6. We see no force in the contention of the learned Counsel that the Collector was not empowered to impose a redemption fine in lieu of confiscation when the goods had already been released provisionally as we find from the impugned orders that the Collector has ordered realisation of the penalty, fine and duty payable by the appellants by enforcing the bank guarantee already furnished to the Department.
7. In the light of the above discussion we uphold the impugned orders and dismiss the appeals. The cross objections abate.
S.K. Bhatnagar, Vice President
8. I observe that the Department was able to show that the appellants had not maintained their stocks and accounts properly and their explanation about the TV sets found in excess as well as those found short was not satisfactory. Therefore the appellants were liable to pay duty fine and penalty. The mere fact that the TV sets had been released provisionally does not in any way mitigate their responsibility or liability.
9. Normally the offending goods available are confiscated but if released provisionally pending decision, the redemption fine which would have been leviable on the goods, had they been produced before the officer could always be ordered to be realised from the bank guarantee/bond and the Collector having ordered such realisation, the appellants do not stand to gain from this technicality.
10. Hence I agree with the conclusion of the learned Member (Judicial) that the appeals are liable to be dismissed. They are dismissed accordingly.