G.P. Agarwal, Member (J)

1. Being aggrieved with the confiscation of 39 packages of motor vehicle parts by enforcing the bond and appropriating an amount of Rs. 35,000/- in lieu of confiscation and also... the appellants have filed the present appeal.

2. Factual backdrop : It was the case of the Department that on 3-7-1985, the preventive officers concerned intercepted a motor tempo loaded with 26 wooden cases containing motor-vehicle parts at UP-Delhi border near Maharajpur check-post and on demand, Mohd. Kaleem Khan, Driver of the said vehicle produced two gate pass both dated 30-6-1985 and proforma invoices all dated 30-6-1985 and GR dated 30-6-1985 of M/s. Chawla Transporters, Ghaziabad and after interrogating the said driver and examining the record of the said transporter and also examining the record of the appellants' factory, whereby it was revealed that the said goods found loaded in the aforesaid tempo on 3-7-1985 had actually left the factory gate on 30-6-1985, the officer concerned seized the said 26 wooden cases containing motor vehicle parts on a reasonable belief that it was a case of double transportation of the goods without payment of Central Excise duty because similar goods were being transported on the gate passes which were of earlier dates. It was their further case that during the visit of the appellants' factory, the officer concerned also found 13 wooden cases containing motor vehicle parts manufactured by the factory, in duly packed and ready to despatch condition, lying in the factory premises under the shed known as Cycle Stand. The same were also seized on a reasonable belief that the appellants cleared the said 13 wooden cases also from their manufacturing goods. Statement of Shri Vinod Kohli, an authorised representative of the appellants' factory was recorded on 3-7-1985 itself wherein he is said to have failed to offer any accountal of these goods. As a follow up action, a show cause notice calling upon the appellants to show cause as to why the seized 39 packages containing motor vehicle parts be not confiscated and penalty be not imposed was issued to the appellants. The transporter and the Driver namely Shri Har Charan Singh Chawla and Mohd. Kaleem Khan, respectively were also issued show cause notices to show cause as to why the penalty be not imposed and why the aforesaid tempo be not confiscated. The main defence of the appellants' company was that on 30-6-1985 the factory had prepared a daily despatch statement of the goods to be lifted from their factory by the aforesaid transporter namely M/s. Chawla Transporters and sent it to the said transporters. Accordingly, the goods were loaded in three tempos of the said transporters and cleared from their factory. One of the tempos contained 39 packing cases after clearance had developed mechanical defect after leaving the factory and the said transporters finding that they could not repair the tempo immediately unloaded the goods and wanted to keep them at a safe place and for this purpose they approached the contractor of the cycle stand and asked him to allow them to store the said wooden cases namely the said 39 packages at the cycle stand and thereafter a part of these goods namely 26 cases was transported from the cycle stand by the transporter on 3-7-1985 and the remaining 13 packing cases were seized at the cycle stand on the same date which were cleared on 30-6-1985 and cited the case law to show that burden to prove in such cases lies on the department and no penalty was called for in the facts and circumstances of the case. The transporters and the Driver also contested the show cause notice. However, the Additional Collector of Central Excise did not agree with the said defence of the appellants and consequently he imposed a personal penalty of Rs. 40,000/- upon the appellants under Rule 173-Q of the Central Excise Rules, 1944 and also ordered for the confiscation of the seized 39 packages of motor vehicle parts under the same