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TMI Blog2006 (6) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... nue proceeded against him on the ground that he manufactured Tetrapods and Cement Concret Armoured Units (CCAU) which are excisable and cleared the same to M/s Visakhapatnam Port Trust (hereinafter referred to as VPT) without payment of Central Excise duty. The Adjudicating Authority demanded an amount of Rs. 1,10,75,644/- from the appellant being duty on 11,496 Nos. of CCAU manufactured by him. The adjudicating authority imposed equal penalty under Section 11AC of the Central Excise Act. Interest under Section 11AB was also demanded. Further he imposed a penalty of Rs. 1,00,000/- on M/s VPT under Rule 209A of the Central Excise Rules read with Section 38A of the Central Excise Act. The appellant, Shri Raju, strongly challenges the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proceedings on the same subject matter has already been decided against the party, the question of suppression of facts, willful mistakes, fraud, etc. could not arise. Second show cause notice is untenable and proviso to Section 11A could not be made applicable. He relied on the following case laws :- (i) ECE Industries Ltd. v. CCE - 2004 (164) E.L.T. 236 (S.C.) (ii) Hyderabad Polymers (P) Ltd. v. CCE [2004 (166) E.L.T. 151 (S.C.)] (iii) Nizam Sugar Factory v. CCE [2006 (197) E.L.T. 465 (S.C.)] (c) The Department had already concluded that the appellant was only a Contractor and in the present proceedings, the Department took a diametrically opposite stand. This is not tenable. . (d) Assuming without admitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCA units were made at site allotted by M/s VPT and it is not a case of Revenue that CCA units were not used in the breakwaters. Therefore the above said Board s Circular is clearly applicable and binding on the Revenue as held by the Constitution Bench of 5 judges of the Apex Court in the case of CCE v. Dhiren Chemicals Industries [2002 (139) E.L.T. 3 (S.C.)]. (g) The penalty imposed is illegal and the impugned order does not bring out a scintilla of evidence as regards culpable mental state to warrant imposition of penalty and interest. The impugned order is therefore legally untenable. 5. The learned Jt. CDR re-iterated the Order-in-Original. 6. We have gone through the records of the case carefully. In the Visakhapatnam Por ..... X X X X Extracts X X X X X X X X Extracts X X X X
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