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TMI Blog2010 (2) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawal of exemption pointed out. Tribunal order upholding confiscation on the ground of non-registration and enhancement of penalty, sustainable. Not a case of clandestine removal of goods and cenvat credit rightly allowed. - 138 of 2008 - - - Dated:- 25-2-2010 - Ashutosh Mohunta and Mehinder Singh Sullar, JJ. Shri Sukhdev Sharma, CGC, for the Appellant. Shri Jagmohan Bansal, Advocate, for the Respondent. [Order per : Mehinder Singh Sullar, J.]. - The compendium of the facts, culminating in the commencement of, relevant for disposal of present appeal filed by the revenue and emanating from the record, is that the respondent assessee- M/s. Bhawani Weaving Factory (for brevity "the assessee") was engaged in the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . of 100% Viscos Yarn, imposed penalties of Rs. 10,000/- under Rule 25 of the Rules and Rs. 2,43,841/- under Section 11AC alongwith interest under Section 11AB and confirmed the demand amounting to Rs. 2,43,841/- under Section 11A of the Act, vide impugned order dated 12-8-2005 (Annexure A2). 4. Aggrieved by the order (Annexure A2), the assessee filed the appeal and the Commissioner (Appeals) modified the same in the following manner, vide order dated 31-7-2006 (Annexure A3) :- "(i) confiscation of 250 MT of Viscose Yarn is upheld; (ii) Demand of duty of Rs. 1,20,735/- (Rs. 2,14,637-Rs. 93,902/-) is confirmed. However, the admissibility of Cenvat credit of Rs. 93.902/- shall subject to the verification by jurisdictional e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without following the procedure as laid down under the Cenvat credit Rules 2002?" 8. Impugning the order (Annexure A4), at the very outset, the learned counsel for the revenue has vehemently argued that it stands proved on record that the assessee has wrongly claimed the Cenvat credit, cleared the goods without payment of any duty, violated the provisions of the Act and Rules and so much so, it was not registered under the Act. Therefore, the Adjudicating Authority rightly confirmed the demand of duty and imposed the penalties and interest. Hence, he prayed for acceptance of the appeal. 9. Supporting the impugned order, on the other hand, learned counsel for the assessee has urged that since everything was made clear to the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible explanation to offer. 13. Moreover, the Tribunal having considered all these relevant facts, has held that the confiscation of the goods was justified and since the assessee was not registered with the Central Excise Department, so it is not a case of non-accountal of goods by registered unit and thus enhanced the penalty from Rs. 25,000/- to Rs. 50,000/-, vide impugned order (Annexure A4). No other legal infirmity has been pointed out in the impugned order by the learned counsel for the revenue. 14. In the light of the aforesaid reasons, it is held that in view of exemption of the indicated goods prior to 1-4-2003, the assessee has a reasonable and bona fide explanation to make and it cannot be termed as a case of clandestine rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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