Judgment:
1. Prayer in the application is for decision on merits based on written submission. Accordingly, we have heard Shri R.K. Chandan, Ld. JDR appearing for the revenue.
2. We have gone through the impugned order passed by the Commissioner.
As per the facts of the case on record, the Central Excise Officers intercepted one vehicle loaded with insulated wires on 10.09.1994 during the course of transit checks. It was ascertained that the consignment was cleared from the factory under the cover of Commercial invoice No. 33 dated 28.7.1994 as also other invoice No. 33 dated 8.9.94 and was consigned to M/s. Karamyog Electricals. Driver and cleaner of the truck deposed in their statement the goods have been loaded from the premises of the appellant's factory.
3. As a follow up action, appellant's factory premises was visited and it was found that the last clearance was effected on 8.9.1994 under invoice No. 6 in: the name of M/s Karnataka State Electricity Board.
Inasmuch as no document showing payment of excise duty in respect of goods in question was produced by the appellant, the same along with vehicle were put under seizure. Subsequently proceedings were initiated by way of issuance of show cause notice which culminated into an order passed by Addl. Collector confiscating the goods under seizure and appropriating cash security of Rs.45,000/- and Rs.25,000/- given by the appellant at the time of provisional release of goods. In addition payment of Rs.56,555.30 was confirmed and penalty of Rs.25,000/- was imposed upon the appellant. The said order was impugned before the Commissioner Appeal who upheld the same. Hence the present appeal.
4. The appellant's contention before the authorities below was that prior to 1.8.94 they were working under the small scale Notification 1/93 when they opted for modvat scheme. The said goods in question were in fact cleared on 28.7.94 when they were availing the exemption and the same were kept in staff quarters as their customer expressed his inability to pick up the goods. The above contention has not been accepted by the authorities on the basis of the statement of Shri D.K.Gandhi employee of the appellant and Shri P.M. Jain, partner. The said statement that goods were cleared on the day of seizure were not retracted at any point of time and no evidence in support of their contention that the goods were kept in the staff quarters was placed on record. Commissioner has also observed that inasmuch as the goods were removed on 10.9.94 they were required to pay concessional rate of duty as they were working under the modvat scheme at that time. The appellants reiterated the same contention in their appeal. The fact that the goods were loaded in the truck on 10.9.94 is clear from the statements of the driver and the cleaner. Shri P.M. Jain, in his statement dated 10.11.94 has also admitted that the consignments were removed from the factory after 1.8.94, as also Shri. D.K. Gandhi in his statement on 16.2.95. These statements have never been retracted as observed by the Commissioner in his impugned order. Even if the appellant's contention that the goods were in complete manufactured condition as on 28.7.94 when they were working under exemption in terms of Notification 1/93 is accepted, they are required to clear the goods on payment of duty at the time of clearance of the same when they were admittedly working under modvat scheme. As such we do not find any infirmity in the view taken by the authorities below. Accordingly, we reject the appeal filed by the appellant and uphold the impugned orders.