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TMI Blog2007 (9) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... man Member (T) [Order per: S.L. Peeran, Member (J) (Oral)]. - 1. This appeal arises from Order-in-Appeal No. 125/2004 dated 6-10-2004 by which the Commissioner (Appeals) has dismissed the appellants' contentions that (i) the appellants not having crossed the SSI exemption limit; (ii) there was no clandestine removal and further (iii) the erection of grinding enclosures with steel enclosures with civil work does not bring into existence new goods. The appellants had manufactured/fabricated Pollution Control Equipments and Parts thereof falling under several Chapter headings. On this aspect, they do not contest the case. The contention raised is pertaining to the non-excisability of the item grinding room/enclosures, which is broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essive, as there was no intention to evade duty in the matter. He submits that the duty has to be re-worked out and the duty on the grinding room is required to be excluded. He submits that no penalty could be imposed in the present case. He further relies on the Apex Court judgment rendered in State of Madhya Pradesh v. Bharat Heavy Electricals - 1998 (99) E.L.T. 33 (S.C.) wherein it has been held that mandatory penalty does not mean that only the maximum should be imposed. The adjudicating authority has got discretion to levy lesser amount. 3. The prayer is opposed by the learned JDR. He submits that the grinding room is nothing but a partition which can be removed and saved for re erection elsewhere. it is a movable propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H and is supplied by a Centrifugal fan of their model ACBL-70. The outside ambient air is drawn by the Centrifugal fan through a set of duet runs and supply air grills. It is further submitted that the air gets contaminated during the working of personnel inside. This contaminated air is exhaust to maintain a clean and comfortable environment inside the room/enclosure. It is stated that this system has a capacity of 20000 CMH. It is further stated that this system is incorporated with exhaust fan of their model AMRL-60. The exhaust fan draws the contaminated air within the room/enclosure and is dispersed to the atmosphere through a set of Gl Ducting. They contend that it becomes an immovable property, as it cannot be removed and if it is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. The Apex Court, in the case of State of Madhya Pradesh v. BHEL (cited supra), has already taken a view that the adjudicating authority need not impose mandatory penalty to the maximum extent and they have inherent powers and discretion to levy lesser amount depending on the facts and circumstances of each case. We are inclined to accept this ruling. We understand that the appellants being young entrepreneurs held bonafide belief that they are eligible for certain exemption as well as for waiver of duty. Therefore, taking into consideration the overall facts and circumstances of the case, the penalty in this matter is restricted to Rs.25,000/-. The impugned order is modified accordingly. The Commissioner shall re-work out the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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