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TMI Blog2009 (6) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri B.S. Suhag, DR, for the Respondent. [Order per : D.N. Panda, Member (J)]. Ld. DR in Appeal case No. E/4332/04 has challenged the first Appellate order passed by the ld. Commissioner (Appeals) holding that the rate of duty applicable to the old machinery removed from its factory shall be as that was applicable at the time of acquisition of that machinery by the Appellant. Also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, the manufacturer of the final products shall pay an amount equal to the duty of excise which is leviable on such goods at the rate applicable to such goods on the date of such removal and on the value determined for such goods under sub-section (2) of Section 3 or Section 4 or Section 4A of the Act, as the case may be, and such removal shall be made under the cover of an invoice. 2. Ld. Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of removal and nothing else. 3. Both parties are in appeal against penalty. The penalty that has been levied by order of Adjudication was invoking Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944. When we read page 24 of the appeal folder, we are unable to find the essential ingredients of Section 11AC to penalise the assessee. We may state that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (232) E.L.T. 29. When there is an interpretational ambiguity, it is not proper to resort to a practice which shall defeat the ratio laid down by the apex court in the decision we have cited above. 4. In view of aforesaid decision, we direct the result of appeal of both sides as under :- 1. The assessee succeeds in its appeal so far as the extent of penalty upheld by the ld. first App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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