Rakesh Kumar Garg, J. - (1.) THE Revenue has filed this appeal under Section 35G of The Central Excise Act, 1944 against the order dated 23.12.2004 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi raising the following substantial question of law: Whether the setting aside of confiscation of stock and imposition of penalty is justified on the sole ground that the manufacturer is a small scale unit falling within the total exemption from duty and there is no evasion of duty, even when the goods were intercepted being removed without any covering documents and also when no record/accounts were being maintained by them in their factory premises which could show the value of their clearances because the exemption from duty is conditional and is limited by the total value of clearances and by removing goods in a clandestine manner & not maintaining records regarding clearances effected, party was suppressing value of clearances which eventually led to evasion of duty
(2.) THE brief facts of the case leading to the filing of this appeal are that on 18.12.2000, Central Excise Preventive Staff, Jalandhar Division seized, in transit, 40 bags of Hex Bolts valued at Rs. 37,000/ - on the ground that the same were being removed in a clandestine manner by the assessee without payment of duty and without issuance of any bill or covering document. In follow up action, the staff visited the factory premises of the assessee and seized 669 bags of Hex Bolts valued at Rs. 6,18,925/ - on the ground that same were produced and kept unaccounted for removing clandestinely at a later stage. Accordingly, the assessee was issued show cause notice dated 12.2.2001 proposing confiscation of seized goods valued at Rs. 6,55,825/ - and imposition of penalty. The assessee submitted reply to the show cause notice stating therein that the assessee is not holding Central Excise Registration as the value of home clearances during 1999 -2000 was Rs. 39,78,489/ - and during 2000 -01 upto 18.12.2000 was Rs. 59,94,360/ - and thus, the value of home clearances were less than the exemption limit of Rs. 50 lacs and Rs. 1 crore respectively as envisaged under Notification No. 18/99 -CE and 8/2000 CE. Since the assessee was not required to maintain statutory Central Excise stock register, there was no ground to invoke the penal provisions against the assessee. The adjudicating Authority vide its order dated 18.2.2002 imposed a redemption fine of Rs. 30,000/ - in lieu of confiscation of the said goods and also imposed a penalty of Rs. 20,000/ - under Rule 173Q of the Rules upon the assessee. Aggrieved against the said order the assessee filed an appeal before the Commissioner (Appeals). However, the said appeal was dismissed vide order dated 17.12.2003. The assessee filed further appeal before the Tribunal stating therein that it being a small scale unit, did not require any Central Excise Registration or keeping of statutory records. It was also pointed out that the assessee was entitled to full exemption from Central excise duty upto Rs. 1 crore for the financial year 2000 -01 whereas its total clearance in the year 2000 -01 was about Rs. 51 lacs upto 18.12.2000 and therefore, there was no justification for confiscation and imposition of penalty since there was no duty evasion involved. The Tribunal vide its order dated 23.12.2004 accepted the appeal filed by the assessee and set aside the order of confiscation and penalties imposed by the lower Authorities.
(3.) WE have heard learned Counsel for the appellant -revenue and perused the record.;