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TMI Blog2010 (9) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the show cause notice, there was no question of imposition of penalty by the adjudicating authority. There was absolutely no case for the department even to file the appeal before the Commissioner (Appeals) - order passed by the Commissioner to justify filing of the appeal clearly reflect non application of mind.the appeal is dismissed. - E/1193/2008 - 1163/2010-SM(BR)(PB) - Dated:- 28-9-2010 - Justice R.M.S. Khandeparkar, J. REPRESENTED BY : Shri K.P. Singh, SDR, for the Appellant. None, for the Respondent. [Order (Oral)]. - Heard Departmental Representative for the appellants. None present for the respondents. 2. This appeal arises from the order dated 28-2-2008 passed by the Commissioner (Appeals). By the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing asked about the reasons of such shortage in the stock of inputs, Shri Rajeev Chaturvedi stated that he did not dispute the shortage detected by the officers and stated that the said stock was cleared from his factory premises by the factory staff, in his absence, without cover of any invoice. He also stated that he would pay the duty amounting to Rs. 99,033/- and Education Cess amounting to Rs. 1,981/- within a week s time. There is no dispute that the said amount of Rs. 1,01,014/- was accordingly deposited and had been appropriated by the adjudicating authority. The point merely relates to penalty under Section 11AC of the Act. 6. It is settled law that in case admission, the same has to be considered in its entirety and the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of clandestine removal of the goods. Being so, no fault can be found with the said concurrent finding arrived at by the lower authorities. Indeed this appeal is nothing but abuse of the process of law by the department. There was no issue raised regarding penalty in the show cause notice. There was absolutely no case for the department even to file the appeal before the Commissioner (Appeals). The Section 35EA of Central Excise Act, 1944 clearly requires the committee to apply its mind to ascertain as to whether the matter needs to be pursued in the appeal or not when the order of the adjudicating authority goes against the department. It is essentially to avoid unnecessary litigation by the government and to avoid unnecessary wastage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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