Full Judgment
2. Shri Swaminathan for the appellant straightaway says that the entries in the RG 1 register with regard to the clearances of these goods were made on 31st July and that the gate passes were also issued on that date but the goods had not been manufactured when this was done and they were actually manufactured later. The Company ante-dated the dates in the gate passes and the RG 1 register in order to include them in the figures of their clearances for July The motive for this was to show an increased turn over to satisfy it. He admits contravention of the procedure but says that duty is not liable to be paid on these goods as it had already been paid and therefore there is no case for confiscation.
3. Shri Mewa Singh, the departmental representative says that there is a time limit within which goods covered by gate passes were to be transferred and says that it is extremely improbable that an assessee would pre-date the gate passes for the reason claimed. He says that issue is clear and the Collector's conclusion is right.
4. If in fact there had been two removals, the goods covered by the gate passes of 31-7-1990 would have already been cleared and delivered.
It would be easy for the department to verify this point by referring to the consignee of the goods. He could have been asked whether he got the goods in question and if so, when. This has not been done. The department has also not verified what the actual balance was on 31st July and how much the Company could have produced and whatever was produced between 31st July to 4th August, 1990. The entire records of the factory including the records maintained by the gate security which Shri Swaminathan says is independent agency show that the goods were not removed on 31st July. There is, in short, nothing in the order of the Collector to show there has been certain quantity of goods manufactured and cleared without payment of duty earlier.Uptron Powertronics Ltd. v. Collector of the Central Excise, Meerut [1991 (56) E.L.T. 245 (Tribunal)] that it cannot be concluded only on the basis of assessee's pre-dating gate pass that there has been evasion of duty and this ratio would apply to this case. In the absence of any independent evidence in addition of pre-dating of gate passes, the Collector's conclusion that the goods were sought to be removed cannot be sustained. The appellant would however, be liable to penalty under the provisions of rules as admitted by the advocate.
6. We allow the appeal to the extent that demand for duty and confiscation are set aside. The penalty imposed on the appellant is reduced to Rs.10,000/-.