M/S. Mahesh Industries vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 90/APPL/CUS(D)CAMP CHD/2013- 14 dated 03/01/2014 passed by Commissioner of Customs (Appeals) New Delhi (Camp at Chandigarh) ]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Mahesh Industries Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, Chandigarh

Appearance:

None for the Appellants

Shri G R Singh, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 1.07.2015

ORDER NO. FO/ 52100 /2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against imposition of Redemption fine and penalty on the appellant on the premise that the excess stock found in their factory is meant for clandestine removal.

2. The facts of the case are that on 15.11.2008, the visit was conducted at the factory premises of appellant wherein finished stock was accounted and it was found that as per stock register, the opening balance of the stock was 17896 pieces of bushes, but on actual counting, it was found to be 27568 pieces, i.e. there was excess of 9672 pieces of bushes on the said date. It is alleged against the appellant that the excess stock found at the time of stock taking is meant for clandestine removal. On this basis, the case has been booked against the appellant and therefore excess stock found on 15.11.2008 is required to be confiscated and same can be redeemed on payment of redemption fine and imposition of penalty. Matter was adjudicated. Both the authorities below held the goods are liable for confiscation. Consequently redemption fine and penalty were imposed by the adjudicating authority which later on was reduced by learned Commissioner (Appeals). Aggrieved from the said order, appellant is before me.

3. None appeared on behalf of the appellant but the appellant has filed written submissions in support of their appeal.

4. On the other hand, learned AR reiterated the finding of the impugned order.

5. Perused the record and considered the submissions made by learned AR.

6. I find that in this case, the facts which are coming in my knowledge is that appellant is manufacturer of bushes and it is the contention of the appellant that their daily production is about 9000 to 10000 pieces of bushes per day. From the records, it is not clear that how much is the production of the appellant per day and the contention of the appellant that they are manufacturing 9000 to 10000 pieces of bushes has not been contraverted by the Revenue with any cogent evidence. In the absence of any cogent evidence, the allegation is merely based on assumption and presumption and that excess stock found is meant for clandestine removal. Infact charge of clandestine removal is serious charge. It should be supported by some evidence which is absent in this case whereas the appellant has taken a defense that they are manufacturing 9000 to 10000 pieces per day and they are entering the quantity manufactured in a day at the end of the day. In these circumstances, without ascertaining the production of the day, from the records, the demand against the appellant is not sustainable. Hence goods are not liable for confiscation and thus question of imposition of redemption fine and penalty does not arise.

7. In these circumstances, I set aside the impugned order and allow the appeal with consequential relief, if any.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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