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TMI Blog1994 (4) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... cate has appeared on behalf of the appellants. He pleaded that the duty amount involved is at Rs. 7,31,700/- but it was paid and there is a penalty of Rs. 10 lakhs. The period involved is August, 1992 to January, 1993 and the show cause notice is dated 2nd March, 1993. He argued that imposition of penalty is ab initio illegal as there is no mention in the show cause notice as to the imposition of penalty. He pleaded that penalty proceedings are quasi criminal proceedings and as such when there is no mention of the leviability of the penalty in the show cause notice, the penalty cannot be imposed. Now coming to the levy of duty the learned Advocate argued that the adjudicating authority has included the value of the optional accessories, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is present for the respondent, relied on the order passed by the Collector. She drew the attention of the Bench to page 1 and 2 of the order in original. She laid special emphasis on the following: "The party were also exporting the Vacuum Cleaner wherein they included the value of the OAS in the export value of the goods. However, in the clearance for home consumption the party excluded the cost of the OAS. The cost of individual items of the OAS, raised in the separate invoices and included in the export value of the unit by the party are as under:- Sl. No. Description of OAS Price Optional Accessories 1. Upholstry Nozzle @Rs. 75.00 2. Crevice Nozzle @Rs. 17.00 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Collector of Central Excise - reported in 1989 (44) E.L.T 763 (Tri.). 3. She further argued that the judgments relied by the learned Advocate have been duly discussed by the adjudicating authority in his order. She pleaded that Section 11A has been duly mentioned in the show cause notice and fairly stated that there is no mention in the show cause notice about the imposition of penalty. She further stated that if any corrigendum has been issued, the same should have been in the file. As there is nothing on record, she pleaded for the rejection of the stay application. 3A. The learned Advocate, in reply, pleaded that no corrigendum has been issued. He again reiterated that prima facie appellants have got a good case on merits. He p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame way, ribbon is not a part of the typewriter though it may not be possible to type out any matter without it." Mrs. C.G. Lal, learned SDR has palced heavy reliance in the case of Narne Tulaman Manufacturers Pvt. Ltd. v. Collector of Central Excise reported in 1988 (38) E.L.T. 566 (SC) Para Nos. 3 & 4 which are relevant, are reproduced below: * * * * * Hon'ble Supreme Court in the case of Bajaj Auto Ltd. v. Collector of Central Excise reported in 1989 (44) E.L.T 763 has upheld the judgment of the Tribunal which is reproduced below :- * * * * * Again, in the judgment of the Gujarat High Court in the case of Jyoti Ltd., Baroda [1979 (4) E.L.T. 546], stress was placed on the test of common parlance. The Court observed as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prised the 'power driven pump', and the column assembly, through which water or liquid would go up, and the discharge head assembly, through which water or liquid is discharged and passed on to the distribution system, were merely accessories of the pump. Evidence as to the trade understanding was produced by the petitioners, in the shape of one Lalchandani, who was a technically qualified man as well as an industrialist. The Court took note of the definition of the term 'accessories' as adopted by the Supreme Court in Annapurna Carbon Industries Co. v. State of Andhra Pradesh (37 S.T.C. 378 ). It quoted the following paragraph from that judgment :- * * * * * 5. The pamphlets of the appellant are contradictory, as in page 133 it was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Advocate had made an offer for furnishing a bank guarantee in case the bench is not inclined to grant stay. Hon'ble Supreme Court in the case of Asstt. Collector of Central Excise, West Bengal v. Dunlop India Ltd. & Others reported in 1985 (19) E.L.T. 22 (SC), in para 13 had held as under :- * * * * * 7. In view of the above discussions and keeping in view the totality of the facts and circumstances of the case we are of the view that in case the appellants are desired to deposit the total duty amount of Rs. 7,31,700/- and penalty of Rs. 10 lakhs, it will amount to undue hardship. We dispense with the pre-deposit of the same on the condition of the appellants depositing Rs. 4 lakhs (Rupees four lakhs only) in cash within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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