COMMISSIONER OF C. EX., KANPUR Vs. AMBIKA ENGINEERS

JUDGEMENT

(1.) IN this application, the Department has applied for reference of the question of law stated below to the jurisdictional High Court.

(2.) I have carefully perused the Final Order ibid and the grounds of the present application. I have also heard both sides.

(3.) I have examined the rival submissions. There is a clear finding in the Final Order that certain quantity of finished excisable goods had not been entered in the RG -I register by the assessee on the day prior to the date on which their factory was visited by officers of Central Excise. Looking into the facts and circumstances of the case, this Tribunal sustained a penalty of Rs. 1000/ - under Rule 226 on the assessee for such non -accountal. Ld. SDR has today agreed that a case of non -accountal of finished excisable goods will be covered, for purposes of penalty, under Rule 226. The question of law, however, relates to confiscation. He has submitted that, where a penalty is imposed on an assessee under Rule 226 on the ground of non -accountal of excisable goods, confiscation of the goods should also follow. On an examination of the penal provisions contained in the Customs Act, 1962 and in the Central Excise Act, 1944 and in the Rules framed thereunder, it appears that it is the general scheme of law to provide for confiscation of the goods in question and then to provide for penalty on the manufacturer as a consequential measure. Such a scheme is forthcoming (for instance) from the provisions of Rule 173Q. Under that rule, there is provision for confiscation of goods in various circumstances and consequential penalty is also provided for. Under Rule 226, however, I come across a different scenario. Under that rule, the focus is on penalty and confiscation of goods is provided for only next to penalty. The DR's argument is that this confiscation should be held to be consequential to the penalty provided under the rule. Having regard to the general scheme of the law, which I have already spelt out, I am unable to accept this argument. The confiscation provided for under Rule 226, in my view, is independent of the penalty provided for under that rule. In the instant case, a penalty has been imposed under Rule 226, but confiscation has been done away with in the facts and circumstances of the case. Therefore, the suggested question of law cannot be considered to have arisen out of the Final Order ibid.