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TMI Blog2017 (10) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... Shakkarwar, Member ( Technical ) Shri Kapil Vaish, Chartered Accountant, for Appellant Shri Pawan Kumar Singh, Superintendent (AR), for Respondent ORDER Per : Anil Choudhary Heard the parties on the application for restoration of appeal. It has been explained by the ld. Counsel appearing for the appellant/applicant that the appeal was dismissed for non-prosecution due to non-appearance of the Counsel on record, who had been duly instructed to appear. It is further explained that the appeal was properly being pursued by the appellant and they had engaged advocate for appearing in the matter; only for the non-appearance of the said advocate on the date fixed for hearing, the appellant should not be made to suffer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of full exemption under this Notification could be availed only if the total clearances of all excisable goods in the preceding financial year did not exceed ₹ 3 Crores. Thus, the appellants were alleged to have not paid duty of ₹ 9,15,063/- on the clearance value of ₹ 57,19,147/- during April, 2003 to June, 2003. Accordingly, vide Show Cause Notice dated 04/08/2003, the appellants were required to show cause as to why the duty of ₹ 9,15,063/- should not be recovered from them under Section 11A(1) of the Act alongwith interest as applicable and as to why penalty should not be imposed upon them under Rule 25 of the Central Excise Rules, 2002 for violation of Rule 4 8 ibid. The Show Cause Notice culminated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) that there is no mala-fide in the matter and the issue being wholly interpretational, the retention of part of the penalty is bad and against the provisions of Section 11AC read with Rule 25 of the CER, 2002. The ld. counsel also relies on a ruling of Single Member Bench of this Tribunal in the case of N. S. Engineering Company Pvt. Ltd. Versus CCE reported at 2010 (262) E.L.T. 903 ( Tri. Bangalore) , wherein under similar facts and circumstances, the penalty imposed was set aside by the tribunal. 7. Heard the ld. A.R. for Revenue, who has relied on the impugned order. 8. Having considered the rival contentions and on perusal of the facts on record, we find that Rule 25 of CER, 2002 provides for penalty, subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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