Commr. of C. Ex. and Cus. vs C.D. Zanda Works (P). Ltd.

G. Chandraiah, J.—This is an application filed under Section 35(H)(1) of the Central Excise Act, 1944 seeking a direction to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), Bangalore to refer the following question of law said to be arising out of the Final Order No. 513/2002, dated 15-4-2002 of the Appellate Tribunal [2002 (148) E.L.T. 845 (Tri. - Bang.)]:

"Whether the goods manufactured by the assessee and not accounted in statutory records are liable for confiscation under Rule 173Q of the Central Excise Rules, 1944 or not?"

The respondent-assessee is a manufacturer of "quimon", a tobacco product. The primary authority found 450 boxes of quimon of Charminar brand liable to be confiscated on the ground that the details of these 450 boxes were not entered in the RG1 register and found lying in the factory premises unaccounted for in the statutory records as on the date of inspection. The Commissioner (Appeals), having found that the goods not being available for confiscation as the same were provisionally released after the execution of B-11 Bond, directed enforcement of the Bond and forfeiture of the appropriate security in lieu of confiscation. In appeal, the Appellate Tribunal, having considered the argument of the assessee to the effect that at best the same may attract penalty under Rule 226 of the Central Excise Rules, 1944 modified the order of the appellate Commissioner directing the adjudicating authority to collect Redemption Fine in lieu of confiscation apart from the penalty which has been levied by the Deputy Commissioner. So far as the fine aspect is concerned, the respondent did not challenge before the Tribunal.

Heard Sri V. Gopalakrishna Gokhale, learned Standing Counsel for Central Excise and Customs and Sri M.V. Raja Ram, learned counsel for the respondent-assessee and perused the material placed on record.

Considering the facts on record particularly the fact that even as on the date when the appellate Commissioner considered the case, the goods were not available for confiscation, we are of the opinion that the question, which is requested to be called for reference, is purely academic, and in the facts and circumstances of the case, does not arise from the orders of the Tribunal. We are also conscious of the fact that now there is entirely a new set of rules governing these aspects calling for reference, the question of law which is set out above is only a futile exercise. Hence, we decline to call the proposed question of law for reference. However, we are not expressing any opinion on the merits of the matter.

Accordingly, the application is dismissed. No order as to costs. As a sequel to the dismissal of the Reference Case, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.