10CS500MiscellaneousMANURamesh Nair,TRIBUNALSAccount#Accounting#Adjudicating Authority#Adjudication#Appeal#Assessee#Attempt#Bench#Commissioner (Appeals)#Confiscation#Date#Duty#Factory#Fine#Finished Goods#Goods#Information#Ingot#Liable for Confiscation#Notice#Officer#Order#Order-In-Original#Penalty#Physical Stock#Proceeding#Record#Redemption Fine#Representative#Service#Show Cause Notice#Stock Taking#Superintendent#Tax2021-12-10 -->



Excise Appeal Nos. 10442 and 10448 of 2019

Decided On: 06.12.2021

Appellants: D.K. Shrivastva and Ors.
Respondent: C.C.E. & S.T., Daman

Hon'ble Judges/Coram:
Ramesh Nair


Ramesh Nair, Member (J)

1. These appeals are directed against Order-In-Appeal dated 16.12.2018 whereby, the learned Commissioner (Appeals) upheld the confiscation of excess found stock of M.S. Ingot and consequential redemption fine of Rs. 2 Lacs however, the penalty was reduced from Rs. 35,000/- to Rs. 10,000/- on the appellant factory and from Rs. 50,000/- to Rs. 20,000/- on the other appellant Shri DK Shrivastava.

1.1. The brief facts of the case are that the officers have visited the factory of the appellant and carried out the physical stock taking wherein, they found the excess stock of 34.16 M.T. of M.S. Ingot. A panchnama proceeding was carried out and the excess found goods were seized. The panchnama proceeding was carried out in the presence of Authorized Signatory Shri DK Shrivastava. Subsequently a Show Cause Notice was issued proposing confiscation of the excess stock and consequential penalty upon the appellant factory as well as co-appellant Shri DK Shrivastava. The adjudicating authority while adjudicating the show cause notice confiscated the excess found stock and imposed redemption fine of Rs. 2 Lacs and penalty of Rs. 35,000/- on the appellant factory and penalty of Rs. 50,000/- was also imposed on the Authorized Signatory Shri DK Shrivastava. Being aggrieved by this Order-In-Original, both the appellants have filed appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals) has upheld the confiscation, redemption fine but reduced the penalties on both the appellants therefore, the present appeals filed by the appellants.

2. None appeared on behalf of the appellants despite notice.

3. Shri Vinod Lukose, learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. He submits that the appellant have raised objection about the manner of stock taking but during the panchnama proceeding, no objection was raised and the authorized signatory Shri DK Shrivastava had shown his satisfaction about the manner of panchnama drawn therefore, subsequently at the time of adjudication, objection about manner of stock taking is an afterthought therefore, the same was rightly not entertained by both the lower authorities.

4. I have carefully considered the submissions made by both the sides and perused the records. I find that the excess stock found during the physical stock taking for which a panchnama was drawn in the presence of authorised signatory Shri DK Shrivastava. No objection was raised at the time of drawing the panchnama by Shri DK Shrivastava however, in the panchnama he submitted that the excess stock accumulated over a period of time therefore, in my view, there is no dispute about the excess stock found. However, no mala fide intention can be attributed to the appellant such has any attempt to clear the goods clandestinely but in terms of Rule 10 of Central Excise Rules, 2002 it is the bounden duty of the assessee to record stock of finished goods. In the present case, it is admitted fact that the excess stock was not accounted for by the appellant therefore, the goods are liable for confiscation. However, since there is no attempt to clear the goods clandestinely and the offence at the most is only of non accounting of finished goods, I am of the view that the lenient view can be taken.