B.D. Agarwal, J. - (1.) M/s. Badri Prasad Hari Das, the Petitioner, is a partnership firm engaged in the manufacture of brass utensils or this the firm procures circles of copper and copper alloys manufactures by rolling mills. These are excisable goods within the meaning of Section 3 read with item 25-A of the First schedule to the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act). On February 26, 1-973 the Divisional Preventive Party, Central Excise visited the business premises of the petitioner upon information that a sister concern namely M/s. Radhey Shyam Rolling Mills had passed on copper and copper alloy circles to the petitioner with the object to evade payment of excise duty. The party seized 167 circles of copper and copper alloy weighing 219.450 kgs. Assistant Collector Central Excise issued notice to show cause dated 10th April, 1973 to M/s. Radhey Shyam Rolling Mills to which the latter replied on 27th April, 1973. The Assistant Collector came to the finding that this firm was guilty of manufacturing and clearing the circles in question in contravention of Rules 52A, 173F, 173Q and 197 of the Central Excise Rules, 1944. The operative parts of the order dated 1st August, 1971 was :" I, therefore, impose a penalty of Rs. 250/- (Rupees two hundred and fifty) only on M/s. Radhey Shyam Rolling Mills and order Confiscation of 167 C & C.A. Circles weighing 219.450 Kgs. to the Union Government under Rule 173Q of the Central Excise Rules, 1944, M/s. Radhey Shyam Rolling Mills is also given an option to redeem the confiscation goods on payment of Rs. 750/( Rupees seven hundred and fifty) only as redemption fine. The seized goods are non duty paid and time hence duty at the appropriate rate should be charged at the time of clearance."
(2.) Upon appeal by M/s. Radhey Shyam Rolling Mills this order was set aside by the Appellate Collector, Central Excise on 2.2.1976 vide Annexure 'C' with the finding " Although the Assistant Collector has tried to argue in his order that the firm of M/s. Badri Prasad Hari Dass and the unit of the appellant are sister concerns but except for the above fact and subsequently retracted Statement of Shri Bhagwan Dass, there is no direct evidence to hold that the subject circles were rolled by the appellant. The case against the appellant is, therefore, not established. In view of the above facts and circumstances of the case, I modify the order of the Assistant Collector to the extent that his order imposing a penalty of Rs. 250/- on the appellant unit is set aside, but the order in respect of confiscation of circles will stand. The appeal is accepted only to the extent indicated above." Since the redemption fine had not been revoked, M/s. Radhey Shyam Rolling Mills preferred revision against that part of the order to the Central Government which dismissed the same on 20th November, 1976 and refused restoration of the goods to the petitioner.
(3.) Aggrieved against the confiscation the petitioner has approached the court under Article 226 of the Constitution.;