1995 (10) TMI 145

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..... and as a matter of fact, the duty has been admittedly paid by the appellants. 2. Sh. Ignatius, the learned Corporate Manager, submitted that the short issue for consideration in the present appeal is with reference to sustainability of the penalty levied on the appellant under the impugned order on grounds of law and on the admitted facts of the present case. It was submitted that proceedings were instituted against the appellants inter alia alleging that the appellant cleared tyres from 1-3-1992 to 21-9-1993 used in the mopeds availing partial exemption to moped tyres in terms of Notification No. 41/89, dated 1-3-1989 as amended and the appellant had deliberately evaded payment of duty and wrongly availed the exemption in question and th .....

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..... tter dated 18-3-1992 clarified that the goods in question with which I am concerned in the appeal are only moped category eligible to concessional rate. It was therefore submitted that the above circumstances clearly establish the bona fides on the part of the appellant with reference to the duty payable on the goods in question. He therefore submitted that the penalty levied is not sustainable and a plea was also taken that the goods were under physical control. 4. Heard Shri Arulsamy, the learned DR. 5. I have considered the submissions made before me. The short issue for consideration is whether the appellant is liable to penalty in terms of Rule 209A as held under the impugned order. The Notification No. l9/92 giving the concessiona .....

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..... est so that we can directly take this matter with the Central Board of Excise Customs for issuing necessary instructions to the field formation on this matter." It is also not disputed that the appellants passed on to the consumers the incidence of only that much of the duty which they paid; and did not collect any more tax. The clearance of the goods also was under physical control. In the above circumstances, I am of the view that it cannot be said that the appellant was actuated by any mala fide or cleared the goods with deliberate intent to evade payment of duty. At any rate, in the admitted facts and circumstances, the proceedings being penal in nature, I am of the view that the appellant should be entitled to the benefit of doubt .....

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