Full Judgment
2. The respondents is a manufacturer of excisable goods falling under chapter heading 54 of CETA. The officer on visit to the factory found that 7118 kgs. of POY received in the factory was not entered in RG 23A Part-I . The officers find that the said POY was duty paid. They seized the said goods on the ground that it was not entered in RG 23A Pt-I.3. The adjudicating authority confiscated the goods under Section 173Q(1) on the ground that the assessee did not account for excisable goods stored by him in the factory, confiscated the plant, land and machinery etc. as imposed penalties.
4. The Commissioner (Appeals) in appeal set aside the order of the Deputy Commissioner on the following grounds in para 5 of this order.
"I have considered the submissions made. I find that on the date of seizure of the POY in question, it was found in the factory premises and the only reason for seizure is that this raw material is not entered in the RG23A Pt-I & Pt.II, which was explained to the officers, but the officers did not listen to them. In any case, if the entry is not made in the Modvat Registers, the goods were not become inputs and get the benefit of Modvat credit. There is no provisions in the rules to order the confiscation of such raw material which is not entered in the modvat register due to absence of documents. If the appellant had entered in the register and taken credit without the document, then the goods would be liable for confiscation. Without taking the credit the raw material can not be seized and confiscated. I rely on 1999 (107) ELT 326 wherein the Tribunal has held that the appellant who was not a manufacturer of Grey fabrics in that case on which no duty was payable and therefore provisions of Rule 173Q -were not applicable. Relying on this position of law which I am bound to follow, I would set aside the confiscations of the raw material effected in this OIO. I do not find any case for ordering the same. When I find that no confiscation under Rule 173Q (1) & 173Q (2) (a) can be determined.
No penalty cannot be imposed under Rule 209A. I would therefore set aside the OIO totally.
5. The Department's grievance is that the Commissioner ought not to have held that there is no provision in Central Excise Law, which requires an assessee to account for the goods stored by him. POY is an excisable goods and it is found unaccounted in the factory making it liable to confiscation under 173Q(1). According to Revenue the Commissioner (Appeals) wrongly relied on the decision reported [1999 (107) ELT 326] where the goods involved was grey fabrics, which were not dutiable. The Revenue also pleads that the Commissioner (Appeal)'s observation that the assessee explained the reasons for non-entry of POY in RG23A Pt-I whereas the assessee did not explain anything at all doing the course of investigations.
7. It is debatable whether Rule 173Q(1) covers goods not manufactured but stored by an assessee. If it does everything that is brought into the factory should be accounted for Ex ceiling fans, fixture etc. being excisable Rule 173Q (1) speaks of any excisable goods manufactured stored by an assessee. Thus an assessee should account for the excisable goods manufacturer as well as those stored by him. (Stored in the BSR?). The Commissioner (Appeals) has rightly followed the ratio of the decision cited by him. The assessee explained as to why no entry is made in RG 23A Pt-I. He stated it is due to a mistake. That in itself is a reason.
8. The Revenue's appeal is dismissed. The order of the Commissioner (Appeals) is upheld.