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TMI Blog2017 (7) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand of duty along with interest and imposed a penalty of Rs. 10,000/- (Rupees Ten Thousand only) under Section 11 AC The learned Commissioner also imposed a redemption fine of Rs. 1,00,000/- (Rupees One Lakh only) and Rs. 50,000/- (Rupees Fifty Thousand only). The appeal of the Department is for enhancement of penalty of Rs. 10,000/- (Rupees Ten Thousand only) to equal amount of duty. Briefly the facts of the present case are that the appellants had entered into an agreement with M/s. India Builders, the builders of Diamond District buildings, for manufacture and supply of Aluminum frames, shutters and other parts of doors and windows. They have commenced their operations in November 1996. The officers of Directorate General of Anti ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed the demand amount of Rs. 4,68,103/- (Rupees Four Lakhs Sixty Eight Thousand One Hundred and Three only), imposed equal penalty under Section 11AC of the Act, confirmed interest, confiscated the seized goods with an option to redeem the same, confiscated the plant and machinery with an option to redeem and confirmed penalty on the employees of the company. Further aggrieved by the said order the assessee preferred an appeal before Hon'ble CESTAT, Bangalore which vide final order No.505-508/2005 dated 01.04.2005 remanded the matter to the jurisdictional Commissioner of Central Excise for de novo adjudication with a direction for quantification of Modvat credit, and imposition of mandatory penalty & redemption fine and to re-work t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Q (2) of Central Excise Rules, 1944 with an option to pay redemption fine. The Commissioner has imposed a nominal penalty of Rs. 10,000/- (Rupees Ten Thousand only) under Section 11AC of CEA, 1944. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed after inordinate delay of three years and the said order has not been passed as per the directions of the Tribunal in the remand order dated 01.04.2005. He further submitted that the lower authorities on technical basis rejected the basis of the appellant's quantification despite directions to the contrary by the Tribunal in its order dated 01.04.2005 which view was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2006. In support of his submissions, the appellants relied upon the following decisions: a) Toyota Kirloskar Auto Parts P. Ltd. Vs. CCE, 2012 (276) ELT 332 (Kar.) b) Union of India Vs. Slovak Trading Co. Pvt Ltd. 2006 (201) ELT 559 (Kar) and affirmed by the Hon'ble Supreme Court of India 2008 (223) ELT A170 (SC) c) Final Order No.20610/2016 dated 04.08.2016 passed by the Hon'ble CESTAT, Bangalore in the case of M/s. Bangalore Cable P. Ltd d) Final Order No.20538/2016 dated 12.07.2016 passed by the Hon'ble CESTAT, Bangalore in the case of M/s. General Commodities Private Limited Vs. CCE 4. On the other hand the learned AR strongly defended the impugned order. He further submitted that impugned order has been rightly passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authority is the AC/DC and the Commissioner in the present proceedings does not have the power to grant refund after adjusting the duty liability. He further submitted that the case-laws relied upon by the appellant are not applicable in the facts and circumstances of the case and are distinguishable. 5. After considering the submissions of both the parties and perusal of the material on record, I find that impugned order has been passed by the Commissioner after considering all the directions given by the Tribunal vide its order dated 01.04.2005. I also find that as per the direction of the Tribunal, the learned Commissioner has clarified the entitlement of modvat credit of Rs. 18,17,187/- (Rupees Eighteen Lakhs Seventeen Thousand One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er due consideration of direction of this Bench has to impose a nominal penalty." 5.1. As far as redemption fine of Rs. 1,00,000/- (Rupees One Lakh only) and Rs. 50,000/- (Rupees Fifty Thousand only) in lieu of confiscation is concerned, I find that in this regard the Tribunal has observed that there are several judgments for not imposing mandatory penalty and redemption fine in the facts and circumstances where the goods are cleared without payment of duty if bonafides are established. 6. In view of the facts and circumstances, I find that the redemption fine imposed by the Commissioner (Appeals) is not sustainable and therefore I dropped the imposition of redemption fine of Rs. 1,00,000/- (Rupees One Lakh only) and Rs. 50,000/- (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X
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