9911796707
TMI Blog2003 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 to 244 were found in their record through which the goods were removed involving central excise duty of Rs. 67,683.15. On scrutiny of more records, it also revealed that they had removed the samples and also the goods against the private challans involving in all Central Excise Duty of Rs. 1,32,405/- and this duty amount also included the duty payable on the goods found short in the stock. Certain other goods were also found unaccounted for in the statutory records and those were also seized. Similarly, some goods which were alleged to be defective were found lying in the factory premises unaccounted and those were also seized. The appellants, however, made the deposit of the entire duty amount, but still they were served with a show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. Feeling dissatisfied, the assessee as well as the Revenue both have come up in appeal against the impugned order of the Commissioner (Appeals). The Revenue has filed two appeals; one against the assessee and the another against the Director of the assessee against whom the penalty under Rule 209A of the Rules had been dropped. 5. I have heard both sides and gone through the record. In Appeal No. E/479/02-NB(S) filed by the assessee, the learned Counsel has not contested the duty liability as the same was deposited by the assessee before the issuance of the show cause notice. What has been contested by the learned Counsel is the imposition of penalty of Rs. 1 lakh under Rule 173Q of the Rules. According to him, this penalty could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed. The assessee by conceding the lapse, deposited the entire duty amount before issuance of the show cause notice. Having initially evaded the payment of duty, the penalty under Section 11AC of the Act, which is a mandatory provision, could not be, in my view, legally dropped by the Commissioner (Appeals). The view of the Commissioner (Appeals) that there was no suppression of facts and that the documents were prepared later on, for dropping the penalty under the said provisions, in my view, is erroneous in law. The Section 11AC does not create any exception in such a situation for non-imposition of the mandatory penalty. Therefore, the impugned order of the Commissioner (Appeals) in this regard cannot be sustained. Keeping in view the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the direction of the assessee. So, for want of any evidence to prove his involvement, in my view, the penalty under Rule 209A of the Rules had been rightly dropped against the Director. Similarly, for dropping the redemption fines, the Commissioner (Appeals) has recorded valid reasons for doing so. The goods were duty paid and the only lapse committed by the assessee was that he did not send D-3 intimation to the competent authority. Therefore, the redemption fine of Rs. 10,000/- imposed by the adjudicating authority in respect of these goods had been rightly set aside by the Commissioner (Appeals). 11. However, there was no sufficient ground available to the Commissioner (Appeals) for setting aside the redemption fine of Rs. 5,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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