Per T.P. Nambiar: The above-captioned Appeal is filed against the Order No. 7 (2404.39) CE/87/Collector-54/87 dated 30.10.1987 passed by the Collector of Central Excise & Customs, Bhubaneswar. In terms of this Order, the learned Collector has confiscated 61.000 biris under Rule 9 (2) read with Rule 52 A of the Central Excise Rules, 1944, leaving an option to the Appellants for redemption of the said biris on payment of a fine of Rs. 100/-. He has confirmed a duty demand amounting to Rs. 1,28,048.73 on 3,33,89,500 biris, and also imposed a total penalty of Rs. 6,000/- on them.

2. The Central Excise Officers with the Superintendent (Preventive), Central Excise and Customs, Bhubaneswar paid a surprise visit to the Bidi Factory of M/s. A.N. Guha & Co. (L-4 No. l/Bidi/75), Sambalpur on 22.10.86 and verified the accounts and stock of Bidi physically. The stock of bidi agreed with the book balance. Thereafter the officers collected intelligence at the said factory that non-duty paid bidis were stored in the residential premises just adjacent to the factoryof Shri A.N. Guha. partner of M/s. A.N. Guha & Co. Then the officers on the strength of a search warrant issued by the Assistant Collector, Central Excise and Customs, Sambalpur searched the aforesaid residential premises and recovered 61,000 Nos. of unbranded bid is packed in 500 bundles kept in two baskets, from the underneath of the cot lying in the second room of the second floor of the residential premises which is not an approved premises under Central Excise Law. These bins fully manufactured and packed were not accounted for in the prescribed register and therefore the officers seized the biris under a Panchanama in the presence of Shri A.N. Guha and in the presence of two independent witnesses with the reasonable belief that these biris are not duty paid and not accounted for in the statutory records and the same are liable to confiscation. On further scrutiny of records, seized from the premises the officers found that M/s. A.N. Guha&Co., Sambalpur paid Octroi Tax on biris of individual consignments received from the bidi workers of the outside villages of Sambalpur Municipality and the quantity mentioned in such octroi receipts are not covered by any transit chits shown in the statutory records. The total biris as per the Octroi tax receipts are 3,85,16,000 nos. which were evidently sold away by them without payment of Central Excise duty and without maintaining the same in the statutory records. The duty involved on such biris is to the tune of Rs. 1,44,897.19. The Central Excise records, private records and Octroi payment pass and other vouchers and transit notes which are useful and relevant for investigation of the case were also seized by the officers under Panchanama in the presence of the party and in presence of independent witnesses on 22.10.86. A copy of the Panchanama was received by Shri A.N. Guha, Partner of M/s. A.N. Guha & Co., Sambalpur.

3. In a written statement Shri A.N. Guha, Partner of M/s. A.N. Guha & Co. Nayapara, Sambalpur, manufacturer of hand-made branded biris under L-4 No. 1/Biri/75 stated inter-alia that besides their L-4 premises situated at Nayapara, Sambalpur they are not having any other premises for manufacture of branded or unbranded Biri. On 22.10.86 the officers of Central Excise Department, Bhubaneswar came to their factory and office premises and verified the stock of labelled and unlabelled biris with the books and accounts and found to agree. Thereafter the officers showed him a search warrant issued by the Assistant Collector of Central Excise and Customs, Sambalpur authorising them to search his residential premises which is adjacent to their manufacturing premises. He read the search warrant and signed on it in presence of witnesses. Thereafter, observing all the required formalities, the officers searched his residential premises in his presence and in presence of the witnesses. On search two baskets of unlabelled hand-made b