HARI CONCAST LTD. Vs. C.C.E, CHANDIGARH

JUDGEMENT

(1.) THE appellants filed this appeal against the order -in -appeal passed by the Commissioner (Appeals).

(2.) BRIEF facts of the case are that the appellants are engaged in the manufacture of steel ingots. On 23.09.95, a truck bearing no. PB -11 F 9866 was intercepted while coming out of the factory of the appellants and it was found that the truck was carrying steel ingots. On verification, it was found that the appellants made two clearances and no duty was paid on these clearances. The driver of the truck, in his statement, admitted that he also taken the steel ingots to the godown of M/s. Gupta Jee and Sons without payment of duty and the goods were unloaded in front of the godown. Steel ingots were also found in front of the godown of M/s. Gupta Jee and Sons. The ingots taken into possession. During the verification, 4.220 MTs of steel ingots were found in excess to their statutory record. These goods were also taken into possession. During the investigation, it was also found that 71.135 MTs steel ingots were removed without payment of duty and these goods were cleared by the private tuck owned by the appellants. A show cause notice was issued and the Additional Commissioner ordered confiscation of the goods taken into possession and gave option to redeem the goods on payment of redemption fine. The duty was also confirmed on 71,135 MTs steel ingots cleared without payment of duty and penalty of Rs. 50,000.00 imposed on the appellants under Rule 173 Q of the Central Excise Rules. The appellants filed the appeal and the same was dismissed.

(3.) LD . Counsel, appearing on behalf of the appellants, submits that the driver of the truck loaded the goods in the truck at his own and without the permission of the appellants and without getting any duty -paying documents took the goods to the consignee and the consignee refused to take the delivery of the goods in absence of duty -paying documents. The driver of the truck unloaded the material in front of the consignees place and came back to the factory for taking the invoice. In the meantime, the officers of the excise department came to the factory. In respect of steel ingots found in excess of the factory, the ld. counsel submits that it was due to clerical mistake by the dealing excise clerk and in steel industry it is not possible to weigh each and every ingot and mostly the records were maintained on the basis of average weight. Therefore, some variation is inevitable. He, further, submits that when the goods are lying in the factory, they are liable for confiscation and relied upon the Tribunal decision in the case of M/s. Balls and Cylpebs Ltd. vs C.C.E. reported in 1996 (1) RLT 560. In respect of duty on 71.135 MTs. of steel ingots, the submission of the counsel is that the demand is only based on entries made in the octroi record. He submits that there is no evidence is on record to show that the consignments mentioned in the octroi record, have been delivered to the customers. His submission is that in absence of any corroborative evidence, the demand is not sustainable. He, therefore, submits that the appeal be allowed.