S.S. Sekhon, Member (T) - (1.)THESE appeals arise from the same order are being disposed of this common order after hearing both sides.
(2.)Pursuant to inquiries made by the officers a notice was issued for non accountal & removal of excisable goods without discharging duty therein. The Dy. Commissioner, found the charges in the notice established & ordered----
(i) Confirmed duty of Rs. 1,213/- on lay flat tunings found in tempo no MH021999 with interest ordered confiscation of 391.155 up of lay flat turnings found in the tempo valued at Rs. 24,251.6.1 under Rule 173Q (1) & ordered the same to be re-determined a fine of Rs. 10,000/-

(ii) Ordered confiscation under Rule 173Q(1) of 701.25 up of LFT & 1100 up of plastic granville both valued Rs. 95081.25 fine not accounted in the factory & ordered the same to be re-determined on fine of Rs. 25,000/-

(iii) Confined duty of Rs. 1,03,623/- on lay flat turnings claiming removed with penalty under 11AC of equivalent amount.

(iv) With interest penalty of Rs. 1 lakh each on Shri Atul oze, manager of assessee firm, Shri Anil oze proprietor under Rule 9(2) & or 52 A &/or Rule 226 of the Central Excise Rule.

(v) Order confirmed of tempo MH 021999 & ordered redemption fine of Rs. 5000/-

Commission (Appeals) on finding that there was no denial of the facts of the offence, being committed, confirmed the order of the Dy. Commissioner. Hence the appeals.

(3.)AFTER hearing both sides & considering the material it is found-
a) There is no reason to confiscate Public Service Vehicle, the tempo no MH 021999, since the driver produced a challan no 124 dated 13.01.98 when he was intercepted with the lay flat turnings deny the transit checks on 13.01.98. The quantity on the challan was 229.2 by which ascertained weight was 391.135. The duty liability on the goods could be established only after the officers conducted full inquiries in this regard about the issuing of the small Section exemption limits. The driver had no means to know the goods were not" adequate duty paid". He had consented to transport the goods in the normal course of his business, normal precaution of documents issued by the factory where he loaded the goods was obtained & produced. The tempo or its owner, cannot be said to be knowingly transporting goods which they knew were liable to confiscation & precautions were not taken. Liability of confiscation of the tempo & redemption fine cannot be upheld. The same are set aside.

b) The duty demands on the goods as made out of Rs. 1,213 & Rs. 1,03,623/- with interest confirmed & are not being pressed in the appeal.

c) The confiscation of the goods found in excess in Tempo is upheld. The confiscation of the raw material (plastic granville) not found accounted set aside as no rule shown for the liability to confiscation of the Raw material not accounted. Redemption fine of Rs. 10,000/- for duty liability of Rs. 1,213/- for goods found in tempo is excessive. Reduced to Rs. 1,500/-

The redemption fine on Raw material i.e. plastic grounds of Rs. 25,000/- set aside.

d) The penalty under Section 11 AC reduced to 50,000/- (fifty thousand only) in the facts Of this case, since no reasons for keeping them at managerial level found in the orders.

e) The penalty under Rule 9 (2) read with 53 & 226 on the proprietor of the firm Shri Sunil Oze is confirmed, since the non account & removal without following the Central Excise procedures established. The same is however reduced to the maximum prescribed under the rules to Rs. 2000, for each rule violated, for being liable as an assessee.

(f) No penalty can be imposed under Rule 9 (2), 52A or 226 on the Manager of the firm of the assessee. The same is therefore required to be set aside.

5) Appeals consequently to be allowed & disposed in above terms.

6) Ordered accordingly.

(Pronounced in Court)