1. In this appeal, filed by M/s S.M. Steels, the issue involved is whether M.S. Angles, purchased by them, are liable to confiscation.
2. Shri J.S. Agarwal, Ld. Advocate submitted that the Appellants are a trading company involved in the trading of M.S. angles, bars roads, channels, etc.; that on demand by M/s B.G. Trading Co., they purchased 12.075 M.T. M.S. Angles of two sizes form M/s United Steel Industries, Lucknow under Invoice No. 016 dt 10-5-1996 in their own name; that they got loaded the goods on truck NO. UML 9185 from the factory and after having segregated weight of two varieties, issued their own trading invoice No. 103 dt. 10-5-1996 in the name of their customer M/s B.G.Trading Co.; that the truck was intercepted at Station Road, Gorakhpur and the goods were seized and later on were confiscated by the Assistant Commissioner with an option to redeem the same on payment of fine Rs. 30,000/- and imposed a penalty of rs. 10,000/-; that truck was also confiscated with an option to redeem the same on payment of fine of Rs. 45,000/-. He, further, mentioned that when the premises of United Steel Industries and their premises were verified, no corroborative evidence was found which supported the case of the Department; that the Appellant being the trader, does not come within the purview of the Excise Act and any technical flaws in their invoicing pattern does not warrant seizure/confiscation; that partner of United Steel had confirmed in his statement d. 4-6-96 to have sold the impugned goods on payment of duty to the Appellant under Invoice No. 016 dt. 10-5-96; that penalty under Rule 209 A of the Central Excise Rules cannot be imposed on the Appellant as the same was not invoked in the show cause notice.
3. Countering the arguments, Shri A.K. Jain, Ld. DR., reiterated the findings as contained in both the lower Orders and emphasised that the Appellants failed to produce any evidence regarding the size of goods order to them by M/s B.G. Trading Co. and there was variance in the weight shown in their invoice and stock register.
4. I have considered the submissions of both sides. I observe that the weight of M.S. Angles as shown by the United Steel Industries in Invoice NO. 016 issued under Rule 52A of the Central Excise Rules and Invoice No. 103 both dt. 10-5-96 that the goods were sent on the orders of the Appellant to Gorakhpur on payment of duty. They have shown the duty paid nature of the goods. The Department, on the other hand, has not brought on record any evidence to controvert the statements recorded from the Appellant and United Steel Industries. According to the Revenue, the goods loaded in the Truck, weighed 12.075, the quantity which was cleared by M/s United Steel Industries on payment of duty. No adverse inference can be drawn from the fact that the ledge of the Appellant showed sale of 12.400 instead of 12.075, particularly when they had shown correctly 12.075 quantity in purchase column. The Revenue has not been successful in showing that the seized goods were no duty paid and accordingly the same were not liable for confiscation.
I, therefore, set aside the confiscation of seized goods and the penalty imposed on them under the impugned Order. The appeal is thus allowed.