9911796707
TMI Blog2007 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, in brief, are that the appellants are engaged in the manufacture of man made fabrics in their factory. On 17-10- 2002, the officers intercepted a truck loaded with 205 thans of man made fabrics in transit. The driver of the truck failed to produce any duty paying documents. The representative of the appellant in the statement admitted that the goods were removed without payment of duty. He explained that they removed the goods without the cover of invoice as the accountant was absent. The Central Excise Officers seized the said goods. The appellant deposited the duty on 4-3- 2003. The adjudicating authority confiscated the seized goods and imposed redemption fine of Rs. 70,000/- and also confirmed the demand of duty, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11AC is a discretionary power. He relied upon the case laws as under :- (1) Commissioner of Central Excise, Indore v. Sai Machine Tools Ltd . - 2004 (170) E.L.T 100 (T-D). (2) CCE v. Malbro Appliances Pvt. Ltd . - 2007 (208) E.L.T 503 (Delhi) (3) Sai Machine Tools Pvt. Ltd. v. CCE, Indore - 2006 (203) E.L.T 15 (M.P.) He further submits that in this case duty involved is Rs. 32,300/- and imposition of redemption fine of Rs. 40,000/- is highly excessive. He also submits that the appellants deposited the duty before issue of show cause notice and, therefore, redemption fine is liable to be set aside. 3. Ld. DR on behalf of the Revenue reiterates the findings of the Com m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records. I agree with the findings of the Commissioner (Appeals) that these records are only a consolidated entries in respect of each day. In the facts and circumstances of the case, it is clearly established that the appellants removed the goods clandestinely without payment of duty. The main contention of the Id. Advocate that the appellants paid the duty before issue of show cause HE notice, therefore, penalty under Section 11AC cannot be imposed. 5. I find that all the case laws cited by the id. Advocate are on particular context and there was no charge of clandestine removal. For the purpose of convenience, the said case laws are discussed herein below (I) In the case of T.P.L. Industries Ltd. (supra), it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )]. (III) In the case of Chel park Co. (P) Ltd . reported in 2007 (216) E.L.T. 364 (Kar.) = 2007 (83) R.L.T 9 (Karnataka), the respondent claimed duty ex emption on Synthetics Adhesives under the self removal procedure and did not discharge duty on the synthetic adhesives cleared without payment of duty and also did not pay 8% of the price of the exempted goods. (IV) In the case of M/s. Pack Point (supra), the assessee availed Cenvat credit on capital goods (machinery) before installation by filing wrong certificate. (V) In the case of Rashtriya Ispat Nigam Ltd. v. Commissioner of Central Excise - 2003 (161) E.L.T 285 (Tribunal-Bangalore), the Tribunal set aside the penalty under Section 11AC of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) expressed the same view of the decision of the Hon'ble Bombay High Court. At this stage, id. Advocate placed the decision of the Hon 'ble Rajasthan High Court in the case of CCE v. Banswara Syntex Ltd . reported in 2007 (212) E.L.T 171 (Rajasthan), in which it is held that the imposition of penalty under Section 11AC of the Central Excise Act as well as Rule 173Q of the erstwhile Rules provide levy of maximum of penalty only, using the discretion of the authority. The relevant portion of the said decision is reproduced below "30. The two provisions read together make it fairly clear that the limit of penalty provided under Section 11AC serves as a maximum limit up to which penalty could be levied but the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswara Syntex Ltd . (supra) is applicable. In support of his contention, he placed the decision of Larger Bench of the Tribunal in the case of Collector of Central Excise v. Kashmir Conductors - 1997 (96) E.L.T. 257 (Tribunal). In para 10.2 of the said decision, it has been held that where the jurisdictional High Court has taken a particular view on interpretation or proposition of law, that view has to be followed in cases within such jurisdiction. If the jurisdictional High Court has not expressed any view in regard to the subject matter and there is conflict of views among other High Courts, then the Tribunal will be free to formulate its own view. I find that me Hon'b!e Rajasthan High Court in the case of Banswara Syntex Ltd . ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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