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TMI Blog2010 (1) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER This is an appeal by the Department against the order of the Commissioner (Appeals) No. 49/CE/CHD/2008 dated 22-1-08. 2. Heard both sides. 3. The relevant facts, in brief, are that the respondent, a manufacturer of stainless steel billets, flats falling under Chapter 72, were required to pay a sum of Rs. 4,00,000/- BED plus Rs. 13,009/- Education Cess for the month of November, 2004 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Rule 25 or Section 11AC could not be invoked and accordingly, the penalty was totally set aside and the appeal was allowed. 4. Learned SDR submits that inasmuch as the assessee has not paid the duty on or before 5-12-2004, the clearances were deemed to be non-duty paid clearances and therefore, penalty under Rule 25 is imposable. The Commissioner (Appeals) should not have set aside the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Commissioner (Appeals) taking into account all the facts and circumstances of the case, has rightly set aside the penalty and the same should not be interfered with. 5.2 Learned Advocate relies on the decision of the Tribunal in the case of Saurashtra Cement Ltd. v. CCE, Rajkot [2008 (225) E.L.T. 395 (Tri.-Ahmd.)]; the decision in the case of Condor Power Products Pvt. Ltd. v. Commissioner [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty with the consequences. The Department was free to have preceded to seize the goods wherever they were after treating them as non-duty paid. However, such action was not taken in this case. Admittedly it was a case of deemed removal without payment of duty, though unintentional, and the same warrants penalty under Rule 27 of the Central Excise Rules, 2002. Even though Rule 27 was not quoted in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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