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TMI Blog2010 (3) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... f the penalties imposed on the respondents by the lower authorities. The relevant facts that arise for consideration are that the respondent had cleared goods for export under ARE-1 to units of SEZ. The said ARE-1s were cleared by the authorities below. The lower authorities have proceeded against the assessee on the ground that the assessee had not furnished LUT as required under Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 read with Rule 19 of Central Excise Rules, 2002, wherein procedure and condition are stipulated for clearance without payment of duty. The adjudicating authority in both the cases have imposed penalties under Rule 27 of the Central Excise Rules, 2002. On an appeal, the appellate authority has upheld the imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot claim the benefit and is required to pay the duty. (d) As per Rule 25 of CER, 2002, if any manufacturer, removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; then all such goods shall be liable to confiscation and the manufacturer shall be liable to a penalty not exceeding the duty on the excisable goods or rupees ten thousand, whichever is greater. (e) In the instant case, though the contravention is proved and the duty is demanded on the removal of excisable goods, the adjudicating authority has erred in wrongly invoking the penal provisions and has imposed the penalty under Rule 27 of CER, 2002. As per show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) is passed keeping in view the OIA No. 129/2008, dated 27-3-2008, and also since both orders are arising out of the same order-in-original, this appeal is filed before the Hon'ble Tribunal, with a prayer to merge both the appeals for decision in respect of OIA No. 129/2008, dated 27-3-2008 and OIA No. 183/2008, dated 19-5-2008. 4. Ld. Consultant appearing on behalf of the respondent/assessee submitted that the imposition of penalty of Rs. 5,000/- itself is incorrect and should not have been imposed upon them. It is his submission that the fact that the goods have been cleared to SEZ is not disputed and the supplies were made to SEZ immediately when the rule in 2002 introduced and hence duty cannot be demanded fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doned. The statutory procedures are prescribed to ensure proper functioning of substantive provisions and therefore contravention invites suitable penalty, though clearly, the penalty should be commensurate with the offence. In this case the substantial requirement of export proof is not controverted by the department; suitable penalty for procedural infringement will suffice. Thus imposition of penalty under Rule 27 of Central Excise Rules 2002 sustains. ...... ........" 6. As against the above reproduced portion of the order, it can be seen that the Revenue's contention, in the grounds of appeal is only to the extent that there is no proper procedures have been followed. It is also on record that the goods have been cleared by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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