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TMI Blog2015 (10) TMI 2347X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Pothys Cotton Products (P) Ltd. (2014 (12) TMI 690 - MADRAS HIGH COURT) and KRM International Ltd. (2014 (8) TMI 11 - MADRAS HIGH COURT) are not applicable in the facts and circumstances of the case as the period involved in this case is from November 1990 to February 1996, when the provisions of Sections 114A and 11AC of the Customs Act were not in force. Both the penalty provisions are applicable prospectively and not retrospectively as held by the Tribunal in the case of Lakshi Packaging (P) Ltd. (1997 (4) TMI 216 - CEGAT, MADRAS). - there is no merit in the Revenue s appeal - Decided against Revenue. - APPEAL No.E/1031/05 - - - Dated:- 4-8-2015 - Mr. P.K. Jain, Member (Technical) And Mr. S.S. Garg, Member (Judicial) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import capital goods, raw materials and spares and consumables, worth of ₹ 20.50 crores which will be exempted from Customs/Central Excise duties in terms of Notification No.13/81-Cus dated 09/02/81 and Notification No.123/81-CE dated 02/06/81 and1/95-Ce dated 04/01/95 for the purpose of in bond manufacture of aluminium tubes, etc. The assessee had imported duty free capital goods, raw materials and spares and consumables involving customs duty totalling to ₹ 6,32,01,419/- and similarly they had also procured duty free indigenous capital goods, raw materials, spares and consumables involving Central Excise duty totalling to ₹ 28,51,865/-. It is further alleged that the assessee failed to fulfil the export obligations and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.123/81-CE dated 02/06/81, Customs duty of ₹ 1,08,62,850/- in terms of Notification No.13/81-CE, Excise duty of ₹ 7,72,268/- in terms of Notification No.123/81-CE dated 02/06/81, Customs duty of ₹ 1,19,35,782/- in terms of Notification No.13/81-Customs dated 09/02/81 and Excise duty of ₹ 10,44,472/- in terms of Notification No.123/81-CE dated 02/06/81 1/95-CE dated 01/03/95. Further, the Commissioner has imposed a penalty of ₹ 5.00 lakhs under Section 114A of Customs Act,1962 and also the penalty of ₹ 50,000/- under Rule 173Q of Central Excise Act. Aggrieved by the order of the learned Commissioner, the department has filed the appeal before us. 3. The learned Commissioner (AR) has submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said provision brought into statute book with effect from 20/09/1996 wherein the period in dispute in this case is from November 1990 to February 1996. In support of his submission, he cited the decision of this Tribunal in the case of Lakshmi Packaging (P) Ltd., Vs. CCE, Coimbatore reported in 1998 (98) ELT 91 (Tri) wherein the Tribunal has observed that with regard to the levy of penalty, since the period involved is 1991 to 1995, the statutory penalty of 100% of duty evaded in terms of Section 11AC could not have been invoked as the said section came into force on 20/09/1996 in view of the judgement of the Honble Supreme Court in the case of Brij Mohan Vs. CIT reported in 120 ITR-1. He further submitted that the penalty provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case. Though in that case an argument was raised on behalf of the assessee that the penalty cannot be imposed retrospectively but the Hon ble Apex Court did not consider the same as the same was not raised before the lower authorities. It is pertinent to mention here that in the case of Commissioner Vs. Macandy Prasad Radhakrishna Prasad Pvt. Ltd. 1999 (107) ELT A121 wherein the Hon ble Supreme Court dismissed the appeal of the Revenue by holding that the provisions of Sections 11AB 11AC being of substantive characters are not to be applied retrospectively. Therefore, keeping in view of the facts and circumstances of the case and the law as discussed above, we are of the considered view that there is no merit in the Revenues appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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