Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No.

122/RAJ/2011 & 123/RAJ/2011 3 ORDER

1. mentioned

The below tabulated appeals have been filed by the appellants as against each appeal against the Order-in-Original No.

AC/02/JAM/2011 dated 06.06.2011 (hereinafter referred to as the impugned order) passed by the Assistant Commissioner, Central Excise Division, Jamnagar (hereinafter referred to as the Lower Authority):
Sr. No. 01. 02. Appeal No./ Stay No. 226/Raj/2011 122/Raj/2011 227/Raj/2011 123/Raj/2011 Name of the Appellant (M/s.) AirTech Fittings (I) Pvt. Ltd., Jamnagar Dilipbhai D. Faldu, Director Remarks

2.

M/s. Air Tech Fittings (Pvt).Ltd, Shed No A-49, GIDC Estate,

Shankar Tekri,Jamnagar,(herein after referred to as the Appellant) are engaged in the manufacture of Excisable goods falling under chapter 74 of the Central Excise Tariff Act,1985and are registered with the Central Excise Department. 3. On the basis of prior intelligence the factory premises of the

appellant was searched on 30.12.2009 by the preventive staff of the central excise HQ Rajkot. During the search it was fund that another unit M/s Uma Cast was also operating from the same premises. The factory premises of the appellant was searched in presence of witnesses as well as in presence of Shri Kalpesh Jayantilal Jani accountant of the appellant. During the course of stock taking of the finished products 2462 kgs of brass parts valued at ` 7,38,000/were found in excess as compared to the Daily Stock Account and therefore the same was seized under Panchnama dated 30.12.2009.During the search the relevant records were also resumed under a Panchnama dated 30.12.2009 for the purpose of investigation. 4. The officers recorded the statement of the accountant of the

appellant Shri Jayantilal Jani on 30.12.2009 under section 14 of the Central Excise Act, 1944, wherein he has stated that he has been working as accountant in the unit. He further stated that the appellant used to send the generated turning brass scrap on job work basis to M/s Uma Cast for manufacturing brass rods. He also agreed with the fact that there was excess stock of 2462 Kgs of finished goods in the factory premises of the appellant;

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 4 that the reason of excess stock of finished goods must be known to the director of the unit. The investigation culminated into issuance of SCN which was confirmed by the lower authority under Order in Original dated 06.06.2011 under which the Brass parts weighing 2462/- kgs valued at ` 738000/-was confiscated under Rule 25 of the Central Excise Act, 1944, and the goods were redeemed to the appellant on appropriation of Bank Guarantee of ` 1,84,500/-.Also impose penalty of ` 76,014/- under rule 25 of the CER 2002.Penalty of ` 10,000/- was imposed under rule 26 of CER 2002 on Shri Dilipbhai D.Faldu, Director of the appellant firm. 5. Aggrieved by the impugned order the appellants has filed the

present appeal along with stay application on the following grounds. The lower authority passed the order arbitrarily without considering the merits of the case. The order is lacking in judicial spirit and appears to have been passed prejudicially without taking in to account the defense of appellant vis-a-vis evidence on record. The appellant submit that though it is mentioned in the impugned notice that search was carried out in the factory premises on 30.12.2009 perusal of panchnama dated 30.12.2009 reveals that search was not physically carried out but the officers had drawn the panchnama on computer system by sitting in a room. The officers have not mentioned as to how excess quantity of finished goods were worked out, what was total physical balance vis-a-vis stock on RG-1 register, from which part or portion of the unit excess goods were found, what is description of excess stock, what is the base of value of the seized goods etc. Since the seized goods where in semi finished and unpacked condition, panchnama only shows total weight without mentioning number of bags/boxes called excess stock. Besides, appellant manufactures various kind of brass parts for which accounts are maintained in weight for certain goods and in pieces for other. But there is no mention or demarcation of the same in the said panchnama. It is evident that no inventory was ever drawn as it is not attached to the panchnama nor it has been provided to the appellant. All these deficiencies do indicate that panchnama dated 30.12.2009 is lacking in many factual aspects. 6. Apart from panchnama there is only one statement of accountant deposed

which was recorded during entire investigation where in he interalia

that reasons for excess stock in the factory must be known to the director of the unit. Appellant submits that a panchnama having so many lacunas cannot be relied upon and cannot be considered as evidence, particularly when there is no supportive corroborative evidence. The appellant further argued that:-

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 5 1. The seized goods were in unpacked condition and processes such as Acid Wash, Checking and Packing in jute bags/Wooden Pallets Boxes were yet to be carried out ,as confirmed under paragraph no 4 of the SCN. 2. Statement of Director of the company was not recorded under section 14 of the Central Excise Act, 1944, so as to ascertain real cause for not entering the seized Brass parts in the Daily Stock Register, particularly when the accountant in his statement dated 30.12.2009 had categorically deposed that Director of the unit who can explain the reason for failure to account excess goods in Daily stock Register. 3. not The seized goods had not reached the RG-1 stage as the same were in finished condition and certain processes such as acid wash,

checking and packing were also required to be carried out to make it marketable. Merely mentioning in the panchnama that the goods were finished does not make it finished and marketable goods. Process and stage of manufacture of brass parts is nowhere discussed in the panchnama otherwise the officers could have come to know that the goods under seizure were in semi-finished condition. 4. There is no cogent evidence to sustain the allegation that appellant wished to remove the seized goods in clandestine manner without paying duty neither any corroborative evidence has been produced to uphold the allegation. 7. The appellant further contended that the goods lying unpacked 30.12.2009 that

condition have not reached stage of account in Daily Stock Register. It is on record that accountant had clarified in his statement dated he was not aware of the reasons for so called excess goods and director of the company can only explain the same. Shri Dilipbhai D. Faldu, Director, vide his letter dated 04.01.2010 had intimated factual position about the seized goods to the Deputy Commissioner (AE) Central Excise HQ, Rajkot. It is apparent from the said letter that the seized goods had not reached RG-1 stage as certain processes were yet to be carried out. This factual position has not been rebutted by the department in as much as no statement of the director was recorded during investigation. If the department was of the view that clarification given by the director was not justifiable or was fraudulent, investigating officer ought to have summoned the director and recorded his statement. However the Director of the appellant was never called as the

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 6 department just wanted to sustain illogical and unlawful allegation that the seized goods were excess stock not accounted for in RG-1 and was meant for illicit removal without payment of duty. Such act on part of the investigating agency is fallacious and against the spirit of law. Therefore appellant submit that the goods under seizure were in semi-finished condition and cannot be considered excess stock of finished goods. Consequently, it cannot be confiscated under the provisions of the Central Excise Rules, 2002 hence order of confiscation is bad in law. 8. It may be appreciated in the instant case that without carrying

out acid wash, precision checking and packing, seized brass parts were not capable of being bought and sold in the market. No evidence has been produced to substantiate that the condition in which brass parts were seized were fit for marketing or selling or were in packed condition. It is therefore apparently clear that appellant has committed no faux pas by not reflecting the above seized Brass parts in Daily stock account. The findings of the lower authority are erroneous and not supported either by written or oral evidence. As could be seen from the findings, the adjudicating authority has held that if the goods were semi-finished accountant could have clarified the same in his statement; that explanation given by the director under letter dated 04.01.2010 was afterthought to cover up the whole issue by giving false information. It is further noted in the findings that admitted excess stock has been found and no proper justification was given by the party. Appellant fails to understand as to how adjudicating authority has concluded that clarification given by the director was false and if it was so why statement of the director was not recorded to expose the truth before issuance of the notice. Further adjudicating authoritys findings that average per day production of appellant was below 500 kgs and excess stock found was much more is also illogical and devoid of merits. 9. Appellant submits that the excess goods were in semi-finished

condition and were not required to be entered in RG-1 register on the day of visit of the officers. Without prejudice to the above it is submitted that the lower authority has ignored many lacunas in the panchnama dated 30.12.2009 cited supra, which was drawn by his own officers. It is nowhere mentioned in the panchnama that the goods were in packed and ready to sale conditions. Not only this, the panchnama even does not disclose description of seized brass parts and value separately. The appellant rely on the judgment delivered by Honble Commissioner (Appeals) in the case of Foton Ceramics Vs.CCE Rajkot under OIA no 481 to 482(413 to414-Raj)2009/COMMR(A) RAJ dated 07.10.2009

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 7 in an identical case wherein confiscation of non-accounted goods was set aside . 10. The appellant has further argued that no penal action can be

taken either in confiscating or imposing penalty unless goods are removed illegally or final products have been in the preparation of such removal. Appellants submit that entire allegation of intention to remove the seized goods without payment of duty is deceptive and unsubstantiated. The appellant submits that the citation relied is not applicable in this case on the following points. 1. The officers have not at all mentioned in the panchnama, as to from where the excess quantity has been worked out; Hence above citation is irrelevant here. 2. In this case the goods were semi-finished and had not reached the RG1 stage. Therefore the case law is in- applicable in this case. 3. When the brass parts under seizure were not in packed condition and also not finished goods, there is no question of entering the same in RG1 register. It, therefore, goes without saying that the said goods can neither be confiscated nor penalty can be imposed on the same. 11. It is admitted fact that the seized brass parts were neither

removed illegally or appellant was in preparation of removal of the same without payment of duty. It is also a fact that brass parts were not seized while the same were being transported. Only one statement of Accountant was recorded on 30.12.2009 during entire investigation and he has also not admitted that the goods were to be cleared without payment of duty. Simply failure to account for brass parts in Daily Stock Register, even if it is considered to be finished goods is not sufficient ground to conclude that it was intended to be removed without payment of duty. It appears that the lower authority has not taken care to explain as to how the citations are irrelevant. It appears that the lower authority has not traveled through any of the judgments relied upon by the appellant. 12. The appellant no 2 has argued that penalty has been imposed on him without any credible evidence but just because he is a director of the company. That the officers did not summon or recorded statement of the appellant to reveal the truth, as apart of investigation. The appellant had wrote a letter dated 04.01.2010 to the Deputy commissioner ,Central Excise ,

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 8 (Prev) Rajkot explaining the true reasons for non accounting of the seized brass parts on 30.12.2009,that it was clarified under the said letter that following processes were yet to be carried out on seized brass parts before they can be accounted for in Daily Stock Register:(i) Brass Parts were to be subjected to Acid Wash. (ii) Brass parts were to be subjected to Precision Check (iii) Brass parts were to be packed in jute bag or wooden box, as the case may be.that it is settled law that interpretation of law is involved, penalty is not imposable; that non accountal of seized brass parts does not fall within the ambit of rule 26 of Central Excise Rules,2002.In the back drop of the above no penalty can be imposed on him under rule 26 ibid. He also rely on the following case laws: 1 Commr C.EX Vapi v/s Bhavani Smelters Pvt Ltd---2009(236)ELT 176 (TriAhmd) 2 Neptune spin Fab Pvt.Ltd,V/s Commr C.Ex.Ahmedabad 2009 (241)ELT 467 (Tri- Ahmd). 3 2009 (247) ELT 261 (Tri.-Mambai) 4 2009 (247) ELT 364 (Tri Mumbai) 5 2009 (23%) ELT 748 (Tri.-Ahmd). 13. Personal hearing in the matter was held on 06.09.2011 which was

attended by Shri P. D. Rachchh, Advocate on behalf of both the appellants who contended that the goods seized was semi-finished which has not been considered by the lower authority. He also disputed the Panchnama. He further stated that in view of the encashment of Bank Guarantee the case may be finalized and decided. In this case the penalty has been imposed on Director whereas no statement was recorded from the Director. contents of the Appeal memorandum. 14. I have carefully gone through the impugned order, and all written He reiterated the

as well as oral submissions made by the appellant. I observe that the main issue involved in the case is Seizure of goods, redemption fine and penalty imposed by the lower authority, as the redemption fine amount has already been recovered by enforcement of Bank Guarantee. Now there remains the penalty under rule 25 and 26 of the CER 2002. In view of the above position I proceed to decide both the appeals on merits. 15. The factual position is that the Excisable goods, Brass Parts,

weighing 2463 Kgs valued at ` 7,38,000/- were seized from the factory premises of the appellant on 30.12.2009 under a regular panchnama by the

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 9 Central Excise, Preventive, HQ Rajkot. The factory premises was searched by the Excise staff and they recorded statement of Shri Kalpesh J Jani, Accountant of the firm was recorded on 30.12.2009 under section 14 of the Central Excise Act, 1944.The accountant inter-alia has deposed that I agree with the fact that there is excess physical stock of 2462.27 Kgs of finished goods as compared to the recorded stock in Daily Stock Account register, But I can not aware of the reasons for the difference in the recorded and physical stock. It must be known to the directors of the firm. The accountant has further deposed that :I agreed with the fact that there is excess physical stock of 2462.27 Kgs of finished goods as compared to the recorded stock in daily stock account register, but I am not aware of the reasons of the difference in the recorded and physical stock .It must be known to the director of the firm. Thus the fact of excess stock of finished goods is accepted by the accountant. 16. The appellants have argued that the panchnama was prepared in the

office premises and the officers have not gone in the factory premises is not correct as the panchnama it self mentioned about the visit and narration of the premises. The contention of the appellant is not having force as the statement of the accountant of the firm categorically accepted the excess in finished goods stock in this connection I rely on the case law in the case of M/s Karori Engg. Works V/s Commissioner C.Ex. Delhi the Honble CESTAT New Delhi has held that :Evidence-Statement Admission/Confession is a substantial piece of evidence which can be used against the maker- In the present case the excess stock of finished goods has been accepted by the accountant of the firm on the same day of seizure. 17. The appellant has further contended that the seized goods had not

reached the RG-1 stage as the same were not in finished condition and certain processes such as acid wash, checking and packing were also required to be carried out to make it marketable. Merely mentioning in the panchnama that the goods were finished does not make it finished and marketable goods. Process and stage of manufacture of brass parts is nowhere discussed in the panchnama otherwise the officers could have come to know that the goods under seizure were in semi-finished condition. I find the above argument as afterthought as the accountant has categorically accepted the excess stock of finished goods in his statement recorded under section 14 of the Central Excise Act, 1944.The accountant is working with the firm for last five years and he has

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 10 deposed in his statement that he is maintaining the accounts and therefore the contention that the goods were not finished can not be accepted at this stage .My view are supported by the judgment in case of Forech India Ltd, V/s Commissioner of C.Ex. Rohtak reported at 2004(175)ELT 203 (tri-Del).In case of Electrolux Kelvinator Ltd,V/s Commissioner of C.Ex.Gurgaon reported at 2007(207) ELT 707 (Tri-Del) in which the Tribunal has held that: Confiscation-Excess stock of finished goods- Non accountal of goodsAppellants pleading that goods yet to be tested hence not reached RG-1 stage Appellant being a unit in a organized sector could not just simply wish away responsibilities case on him by statute-No production slip or production register produced to substantiate that seized goods were in process or waiting for approval-pleas that goods were found in factory hence no intention to remove goods clandestinely, not acceptable since mens rea is not essential for confiscation of goodsconfiscation of seized goods upheld under rule 173Q (1) (a) of erstwhile Central Excise Rules,1944-Rule 25 of Central Excise Rules,2002. 18. The above decision of the CESTAT has been confirmed by the Honble

Punjab and Haryana High Court. The CEGAT WRB Bombay incase of D. S. Screen Pvt. Ltd., V/s Collector of C.Ex. held that Manufacture complete before testing of goods-S.S.Wire and P.B. wire not entered in R.G.1 account-Plea that manufacture thereof not completed purchases till tested not acceptable Section 2(f) of the Central Excises and Salt Act,1944.-Confiscation goods manufactured but not accounted for liable to confiscation. Thus the argument that the goods were yet to be tested does not hold any merit. 19. Another argument taken by the appellant is that excess stock is

due to carry over of last days production, on examination I find that this is not true as the average daily production of the appellant in Dec09 was around 260 Kgs and the difference in the stock was 2462.27 Kgs thus it cannot be accepted that the production of previous day was remained to be taken. The statement relied upon by the lower authority is correct, I rely on the judgment of Honble Punjab and Haryana High court in its judgment in the case of M/s Shiv Shakti Steel Tubes V/s Commissioner reported in 2008 (221) ELT 166 (P&H) held that in the case of clandestine removal statements made under section 14 of the Central Excise Act,1944 by a witness or a party are ex facie admissible in evidence to sustain penalty under erstwhile Central Excise Rules,1944.

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 11 The High court further held that statement under section 14 ibid can be used against the makers as long as it is not hit by the defects envisaged by section 24 of Evidence Act,1872. 20. I also rely on the judgment reported at 2008 (23) ELT 73 (Tri-

Mumbai) in which it has been held that Statement by proprietor and his employees which were never retracted are sufficient evidence as statement of co accused is admissible. I find that the accountant has categorically accepted the excess stock of finished goods therefore the contention of the appellant that the same was of semi-finished goods is not acceptable and thus the arguments hold no merit. The appellant has also contended that the panchnama is having so many lacunas and therefore the same cannot be considered as evidence, particularly when there is no supportive corroborative evidence. I find that the Panchnama drawn clearly mention about the physical stock of finished goods with the RG-1 register 2462 Kgs of brass parts are found to be excess valued at ` 7,38, 000/-approximately.The said 2462 Kgs of brass parts found in excess are seized under reasonable belief that those goods were not entered in the statutory records and were meant for clandestine removal. 21. The appellant has relied on the following judgments which are not

squarely applicable to the present case: 1. Neutral Glass and allied Ind Ltd.V/s Commr C.E.x Surat-2009(235) ELT 337 (Tri. Ahmd).: The case law is not squarely applicable as in the case referred the goods were yet to reach RG-1 stage-there was nothing on records to indicate that goods were in ready to dispatch condition- whereas in the present case the goods were finished as deposed by the accountant of the firm in his statement. 2. Commr C.Ex.Daman V/s Mukesh Metal Ind.-2009(247) ELT 810

(Tri.Ahmd):- No evidence to show that non entry in RG-1 record was with intention to clear the impugned goods without duty payment. Whereas in the present case the accountant has given clear evidence that the goods were not accounted for in the Daily Stock Account. 3. J.J. Packagers V/s Commr C.Ex-2006(196) ELT 381 (Tri. Del) :

Finished goods pleaded to be not yet completely finished goods and still to attain the RG-1 stage. Where as in the present case the goods have been finished goods but were not entered in the daily stock account as accepted by the accountant.

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 12 4. Sunder Silk Mills (P) Ltd V/s Commissioner Central Excise., Hyderabad 2003(153) ELT 176 (Tri. Bang).: The case was with reference to presumptions where as in the present case there is no presumption as the accountant has accepted the excess in finished goods stock. 5 Goenka Products V/s Commissioner C.Ex.Allahabad- 2005(186)ELT 75 (Tri. Del) : Accounts not required to be kept of each and every present case the items were finished goods and the excess goods accepted by the accountant of the firm. 6 Shree Dhootapapeshwar Ltd. V/s Commr C.E.xRaigad -20054 (180)ELT 477 (Tri.-Mumbai): The nature of goods that cannot be entered in RG-1 register until they are filled in required Bottles-The case law is not applicable as the goods manufactured by the appellant totally of different nature. 7. Citizen Extrusion (P) Ltd V/s Commissioner.C.Ex.Surat-II- 2007 (220)ELT 818 (tri.-Ahmd).: There was no attempt to clear the goods as such. No mens rea was involved. Whereas in the present case the appellant involved in the non accountal of finished goods in the Daily stock account. 22. Regarding the evidence to sustain the allegation that appellants stage has of been manufacture but only Daily producing-unfinished items- Where as in the

wished to remove the seized goods in clandestine manner without paying duty neither any corroborative evidence has been produced to uphold the allegation. I find that the accountant of the unit has in his statement clearly accepted the excess stock of the finished goods and the same was not accounted for in the Daily Stock Account of the appellant and the goods was meant for clandestinely removal has clearly been established from the panchnama dated 30.12.2009. The finding of the lower authority regarding excess stock was much more than average of a days production is logical and same hold as strong evidence that the appellant was intending to clear the same clandestinely. The case laws relied upon by the appellant are discussed as under. 23. The appellant contended that mere non-accountal of goods is not

sufficient for confiscation and penalty and there was no intention to clear the goods without payment of duty and have cited various case laws in support of their contention .However I do not find merit on the same as the accountant of

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 13 the firm has admitted the excess stock found and no proper justification was given by the appellant. Such un- accounted huge excess quantity was clearly for intention of clearance without payment of duty. As per provision of clause (b) of sub-rule (2) of Rule 25 of Central Excise rule 2002 non-accountal of excisable goods produced or manufactured attracts confiscation and penalty. My view supported by the judgment of Honble Bombay High Court in the case of Kirloskar Brothers V/s UOI reported in 1988(34) ELT 30 (Bombay)has held that mere non-recording of production in RG-1 Register would attract confiscation and penalty and in this regard mens rea is not required to be proved. In the present case malafide intention is also present. Accordingly the confiscation and penalty are applicable. In view of the above the argument does not sustain. 24. Regarding penalty on Director (appellant No. 2) of the appellant he has

contended that no separate penalty is imposable on director and has cited various case laws. The appellant has further argued that the statement of the Director was not recorded under section 14 of the Central Excise Act, 1944 to ascertain real cause for not entering the seized brass parts in the Daily Stock Register, particularly when the accountant in his statement dated 30.12.2009 had categorically deposed that Director of the unit who can explain the reason for failure to account excess goods in Daily stock register. I find that the accountant has categorically accepted the excess stock of brass parts in the factory premises and the excess stock is clearly mentioned in the panchnama .I find that the statement of the director has not been recorded in this case, without having his active involvement the penalty cannot be imposed on the director .The appellant has relied upon the following case laws : 1.Vikram International V./s Commissioner C.Ex.Thane reported at(247) ELT (Tri Mumbai) 2. Mek Slotted Angles (I) Ltd V/s Commissioner C. Ex. Belapur reported at 2009(247)ELT 364 (Tri .Mumbai). 3. Matsushita Lakhanpal Battery India Ltd V/s CCE Vadodara reported at 2009(235) ELT 748 (Tri.Ahmd). 24. In view of the foregoing discussion I agree with the contention of the

appellant ( No.2) in respect of penalty on director which is not sustainable in the present case. As the department has not brought out his role in the whole transaction by not recording any statement from him, there is investigation failure to that extent. In view of the above the penalty on Director is set-aside.

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Appeal No.226/RAJ/2011 & 227/RAJ/2011 Stay No. 122/RAJ/2011 & 123/RAJ/2011 25. 14 In view of the foregoing discussion and findings I uphold the

impugned Order so far as it relates to confiscation; redemption fine and penalty under Rule 25 read with Section 11AC imposed by the lower authority on appellant No 1. However I allow the appeal regarding penalty on Shri Dilipbhai D.Faldu. Director,of the firm ( i.e.appellant No .2.) . 26. terms. The appeals along with stay applications are decided in the above

( R. B. TIWARI ) COMMISSIONER (APPEAL) By Regd Post A.D. 1. M/s Airtech Fittings (I) Pvt. Ltd., Shed No. A-49, GIDC Estate, Shankar Tekri,Jamnagar. Shri Dilipbhai D. Faldu, Director,M/S Airtech Fittings (I) Pvt.Ltd, Shed No. A-49, GIDC Estate, Shankar Tekri,Jamnagar.

2.

Copy to: 1. 2. 3. 4. 5. The Chief Commissioner Central Excise, Ahmedabad. The Commissioner Central Excise Rajkot The A.C. Central Excise Division, Jamnagar. The Superintendent Central Excise Range-I Jamnagar. Guard file/spare copy.

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