Judgment:
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 & 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 & 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.
4. Heard ld. D.R., who reiterates the findings of the lower authorities.
5. In this case, the appellants admitted the ownership of the trucks, in question and also mentioned that the trucks are not used as public carrier but they are fully used to carry the goods of the appellants' firm only. The truck of the appellants was unloaded in front of the godown of M/s. Gupta Jee & Sons. The goods were seized from that place and there is no record to show that the goods were cleared on payment of duty. In view of this, the confiscation of the goods is up-held and taking into consideration the value of the goods, the imposition of redemption fine is also justified. In respect of the goods, found in excess in the factory, the contention of the appellants is that the goods are found in factory and there is no attempt by the appellants to clear the goods without payment of duty and it is a settled law that in absence of any mans rea, the goods cannot be held to be liable under Rule 173 Q of the Central Excise Rules. From the facts of the present case, it is clear that on the day when the officers visited the factory, the truck of the appellants had taken the goods without payment of duty and unloaded the goods in front of godown of M/s. Gupta Jee & Sons. Therefore, the appellants cleared the goods without payment of duty. Keeping the excess goods, without entering in the statutory record, shows their malafide intention to clear the same without payment of duty. Therefore, the confiscation of these goods is up-held and imposition of redemption fine is also upheld.6. In respect of demand made on the basis of octroi record, the contention of the appellants is that this demand is made only on the basis of entries made in the octroi record showing the truck numbers of the appellants, is not a substantive piece of evidence for confirming the demand. It is admitted by the appellants that the trucks mentioned in the octroi record, are private trucks of the appellants and are not used as public carrier. As per the octroi record, these trucks crossed the octroi barrier with steel ingots. Further, when the manufacturer cleared the goods without payment of duty, he will not make any entry even in his private record showing the name of the customer and he will not show the receipt of amount in respect of such consignments. There is no explanation put-forth by the appellants in respect of octroi record showing their truck numbers carrying steel ingots. Therefore, the demand in respect of these consignments is up-held. However, taking into consideration, the facts and circumstances of the case, personal penalty on the appellants is reduced to Rs. 25,000.00, otherwise, the impugned order is up-held. The appeal is disposed of as indicated above.