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TMI Blog2016 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of de-bonding. It is only when the further steps were taken that the Department / Revenue noticed these serious lapses. Once the nature of the capital goods enabled the adjudicating authority and the Tribunal to arrive at a finding of fact that this was a deliberate or intentional act that we do not think that the appeal raises any substantial questions of law. - Levy of penalty confirmed. - CUSTOMS APPEAL NO. 25 OF 2015 - - - Dated:- 6-6-2016 - S.C. DHARMADHIKARI AND DR.SHALINI PHANSALKAR-JOSHI JJ Mr. Karan Adik with Mr. Hussein Bengali i/b M/s. Jayakar Partners for the Appellant. Mr. A.S. Rao with Mr. Jitendra B. Mishra for the Respondent. ORDER: 1. This appeal by the assessee challenges the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments of the Hon'ble Supreme Court of India and this Court. 5. It is undisputed that the appellants were a 100% export oriented unit. They carried on business of manufacture of excisable goods and equally exported them. They applied for setting up another plant for manufacture and export of the product and they were granted permission. They commenced commercial production in the year 2000-2001 in which year they were granted a status as Star Export House by the Central Government. Thereafter, the appellants invoked clause 6.18 of the Foreign Trade Policy 2004-2009 and sought to de-bond from its 100% EOU status. The appellants addressed a letter to the Development Commissioner dated 4th June, 2008, followed by another letter sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order-in-original, contrary to this, proceeds to levy and impose penalty and which the Tribunal has confirmed. 11. Having perused the Tribunal's order, we find that the essential controversy has been noted and correctly. The appellants did not challenge the demands that were confirmed under the Customs Act and the Central Excise Act. Upon a composite show cause notice and the letters being addressed to the Assistant Commissioner of Central Excise and Customs, now it is too late in the day to urge that insofar as non-payment of customs duty is concerned, the authorities under the Central Excise Act could not have initiated any proceedings. The issue that remained before the Tribunal was of confirmation of that part of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and the Tribunal to arrive at a finding of fact that this was a deliberate or intentional act that we do not think that the appeal raises any substantial questions of law. 13. We do not find any substance in the contentions of lack of mens rea or deliberate or intentional act on the part of the assessee. The finding of fact is otherwise and which is in consonance with the materials produced. The reasons assigned in paragraphs 6 and 7 of the impugned order do not suffer from any perversity or error of law apparent on the face of the record requiring our interference in further appellate jurisdiction. 14. The reliance on the judgment of the Hon'ble Supreme Court in the case of Uniworth Textiles Ltd. vs. Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined in section 11AC of the Central Excise Act, 1944, is in the nature of mandatory penalty and for that the prerequisite would have to be established or not was the argument considered. That was also in the peculiar facts inasmuch as the assessee before this Court was proceeded against on the basis of intelligence that it was not correctly discharging the duty liability. The assessee was carrying out manufacturing activities and under an arrangement with M/s. Tata Electric and Locomotive Company Limited. The activities are referred to in paragraph 8 of the Division Bench judgment. The allegations in the show cause notice are also clearly indicated. In that the moulds developed by M/s. TELCO are the sole property of the assessee. That was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by this Court in the case of Commissioner of Central Excise, Mumbai vs. CEAT Ltd. reported in 2014 (311) ELT 50 (Bom.) is of no assistance. There, the Revenue sought to urge that there was a clear suppression which was alleged in the show cause notice and a detailed finding was recorded by the adjudicating authority. The Tribunal should not have interfered with such a finding. 18. In upholding the order of the Tribunal, the Division Bench found that the assessee had admitted the fact of claiming depreciation on capital goods but it was a bona fide error. There was no intention to evade duty. On realising the mistake, the assessee took steps to withdraw the claim of depreciation and since that did not materialize, he offer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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