K.D. Mankar, Member (T)

1. Heard the ld. DR.

2. The advocate for the respondents has sought an adjournment.

3. The Revenues appeal can be decided on a very short point. The allegation against the respondents is that, on the dale of visit to the factory raw material for manufacture of LPG was found excess.

3. The ld. adjudicating authority ordered the confiscation under Rule 209 of the Central Excise Rules and imposed penalty. The appellate authority did not uphold the order stating that there was an explanation from the respondent that, the excess stock was noted because the said stock could not be moved to the shop floor and remained in the raw material store despite debit entry in RG 23A Part-I i.e. raw material register. This explanation was not accepted by the adjudicating authority. However, the Commissioner (Appeals) also ruled out the confiscation under Rule 209(1)(b).

4. In the Revenues instant appeal invocation of Rule 209(1)(b) is justified for the reason that the same is applicable if any manufacturer does not account for any excisable goods manufactured, produced or stored by him. While this argument has been pressed for justifying the confiscation, it has not been demonstrated in which capacity the respondent has failed to carry out their obligation under Rule 209(1)(b). The respondent is neither the producer nor the registered person or a registered dealer. They are merely the users of the said goods. Consequently, the goods cannot be called excisable goods in terms of the definition contained in Section 2(d) of Central Excise Act, 1944.

"Excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986} as being subject to a duty of excise and includes salt."

These goods having been received by the respondents after due discharge of duly thereunder this cannot come under the category of excisable goods. Consequently the provisions of Rule 209(1)(b) would not apply as correctly held by the ld. Commissioner (Appeals).

5. Accordingly, I do not find any merit in the Revenues appeal and the same is hereby rejected.