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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 ..... Order Nos. 653-654/2010 - Dated:- 9-3-2010 - Shri M.V. Ravindran, J. Ms. Joy Kumari, Jt. CDR, for the Appellant. Shri K.K. Varrier, Consultant, for the Respondent. ORDER These two appeals are directed against Order-in-Appeal No. 183/2008-C.E., dated 19-5-2008; No. 129/2008-C.E., dated 27-3-2008. Respondents have also filed cross-objections in both the cases which are numbered as E/CO/276/2008 and E/CO/01/2010. 2. The case is regarding the enhancement of 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 authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before arrival of goods . (c) When an assessee intends to avail any benefit or exemption from payment of duty, it is required on his part to follow the procedure laid down in the relevant Rules and also should fulfil the conditions laid down for such clearances. In the instant case, in order to clear the goods to SEZ or to export, the conditions laid down in Rule 19 and the Notification issued thereunder he 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Letter of Undertaking (LUT), has not been appreciated by the Commissioner (Appeals) in the aforesaid OIA. Further the fact of violation of statutory provisions has also been accepted by the assessee, thereby rendering them liable for penal action in terms of Rule 25 of the Central Excise Rules, 2002. (h) As the present order of the 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 responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in confirming duty and interest. There is violation of Rule 19 of Central Excise Rules, 2002 by not furnishing letter of undertaking and delay is submitting re-warehousing certificate which are only procedural lapses. Nevertheless, violation of procedures prescribed should not be treated as fit to be automatically condoned. 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 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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