MANISH RICHARIYA Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN these five appeals arising out of a common Order, all the Appellants are aggrieved with the penalties imposed on them and the confiscation of the excisable goods.

(2.) SHRI K.K. Anand, learned Advocate, submitted that M/s Columbia Petro Chemicals manufacture microcrystalline wax and prepared wax: that microcrystalline wax is highly inflammable on account of which the wax cannot be stocked in congested manner: that due to paucity of space they stored some quantity of wax in the nearby store room belonging to M/s. Zenith Sales Corporation; that the Central Excise officer on 23.2.99 seized 22.525 MT of microcrystalline wax from their theory premises which were riot entered in RG I and 26.160 MT from the store room belonging to M/s. Zenith Sales Corpn.; that the Commissioner under the impugned Order has confirmed the demand of Central Excise duty in respect of excisable goods removed from the premises of M/s. Zenith Sales Corpn. and imposed penalty under Section 11 AC of the Central Excise Act on M/s Columbia Petro Chemicals and imposed penalty of Rs. 10,000 each on the other four Appellants under Rule 209 A of the Central Excise Rules. The learned Advocate further, submitted that the Appellant firm is not contesting the demand of Central Excise duty confirmed in respect of the goods stored by them in the premises of M/s Zenith Sales Corpn.; that, however, the goods found in excess at the factory premises is not liable for confiscation since the goods are entered in RG I register only after the same has been commercially tested; that the some quantity which was in packed condition could not be recorded in RG I as simultaneously Income Tax Department was also conducting search in the factory premises. He also mentioned that the redemption fine is excessive considering the facts and circumstances of the case; that the Wax was removed to the nearby store room on account of paucity of space in the factory premises and it was the Appellants only who had lead the Central Excise officers to the store room; that this is not the case in which penalty equivalent to the amount of duty is required to be imposed under the provisions of Section 11 AC of the Act; that in any case penalty is highly excessive; that it is settled law that the separate penalties on partners cannot be imposed. He relied upon the decision in the case of B C Sharma v. Commissioner of Central Excise Jaipur 2000(122) ELT 158 wherein the Tribunal did not found any justification for imposing any penalty on partners of the partnership firm as penalty had been imposed on the firm. Reliance has also been placed on the decision in the case of Harish Dye and Printing Works v. Commissioner of Central Excise and Customs, Swat, 2001(138) ELT 772 wherein it has been held that where the assessee is a partnership firm, it is not necessary legally to consider the assessee as a different from that of the partner. Finally he submitted that no penalty is imposable on M/s Zenith Sales Corpn. as they were not aware of the excitability of the Wax stored in their store room.

(3.) COUNTERING the arguments Shri S. C. Verma, learned Departmental Representative, submitted that the admitted position is that the excisable goods were found in excess in the factory premises which have not been entered in RG I register; that further it is also admitted position that the excisable goods had been removed from the place of the manufacture to another place outside the factory without payment of duty that, therefore, the goods are liable for confiscation and penalty is imposable both on M/s. Columbia Petro Chemicals and M/s. Zenith Sales Corpn. as M/s. Columbia Petro Chemicals has removed the goods from the factory without payment of duty and M/s Zenith Sales Corpn. has received the woods and kept them in their store room without any excisable documents.