9911796707
TMI Blog2011 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. 102 of 2011 - - - Dated:- 16-8-2011 - D.Y. Chandrachud, A.A. Sayed, JJ. Vinay N. Ansurkar with Durgesh Nadkarni for the Appellant R. Ashokan with S.D. Bhosale for the Respondent JUDGEMENT 1. This Appeal arises from an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 13 May 2011 on an application for the waiver of predeposit under Section 35F of the Central Excise Act 1944. A notice to show cause was issued to the Appellant on 10 June 2008 calling upon the Appellant to explain as to why a penalty should not be imposed under Rule 27 of the Central Excise Rules 2002. By an order dated 29 May 2009 the Assistant Commissioner of Central Excise imposed a penalty of Rs. 4,05,93,445/und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s correct in traversing beyond the scope of the show cause notice wherein it is undisputed fact that no activity had taken place in the Appellant's firm? 3. The Appeal is admitted and is taken up for hearing and final disposal with the consent of both the learned counsel. 4. Two submissions have been urged in support of the Appeal. Firstly, it has been submitted that the notice to show cause relied upon the provision of Rule 27 whereas the order of the Assistant Commissioner sought to impose a penalty on the Appellant under Rule 26(2). Rule 26(2), it is urged, came into force on 1 March 2007 and would have no application to the period to which the notice to show cause relates viz. March to July 2004. The Tribunal while accepting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal is, ex facie, incorrect since while recording the submissions in paragraph 3 the Tribunal had as a matter of fact recorded the submission of Counsel that the Appellant had not issued any invoice at all. Moreover, learned counsel sought to place reliance on the averment contained in paragraph 13(5) of the notice to show cause which proceeds on the basis that the signatures contained on 24 invoices issued in the name of M/s. Accelerated Synthetics P. Ltd. do not tally with the signatures of the Appellant on the admitted documents. 5. On the other, Counsel appearing on behalf of the Respondent supported the order passed by the Tribunal. 6. In our view, a reading of the order of the Tribunal would indicate that while recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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