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TMI Blog2018 (7) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... t the aid of power or steam. Thus the units who are engaged in processing or printing of MMF using power operated pumps for lifting water or using power operated stirrer for mixing the dyes are not eligible to claim the exemption under said Notification. Penalties - Held that:- Considering the facts that the proprietor and the firm are one and the same, the imposition of penalty on M/s Neelam Prints as well as proprietor Shri Iftikhar Ahmed was not called for. Therefore, the penalty of ₹ 1,70,108/- imposed on Shri Iftikhar Ahmed is set aside. As regards enhancement of penalty to ₹ 10,000/-, Rule 25 prescribes the maximum amount of penalty which can be imposed and it is not a mandatory penalty. Therefore, enhancing of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and cleared during the period from 01.03.2003 to 30.11.2003 under Section 11A(1) of CEA,1944 along with interest and proposing to impose penalty under Section 11AC of CEA,1944 and under Rule 25 and/or 26 of CER,2002. It was contended that Shri Jagat Narayan, Colour Master working with the Appellant in his statement recorded on 20.03.2004 had admitted that they are using stirrer with the help of electric power for preparation of colour paste which is used for printing. However vide his letter dated 01.04.2004 he informed that on 20.03 2004 he had stated that he is mixing colour with his hand but he used stirrer for mixing colour for Pulse Polio Banners only. That his statement was recorded by threatening him. Shri Iftikhar Ahmed proprieto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as per Rule 25 of CER, 2002 the assessee shall be liable to penalty not exceeding the duty or ₹ 10,000/- whichever is greater. As such the adjudicating authority has no discretion to impose a penalty below ₹ 10,000/-. M/s Neelam Prints and Shri Iftikhar Ahmed also filed separate appeals against the said order. 5. The Commissioner (Appeals) vide common Orderin- appeal No.SB/01-03/Th-II/10 dated 04.01.2010 decided all the three appeals i.e Appeal filed by revenue against Order-in-original dt. 30.11.2005 and appeal filed by M/s Neelam and Shri Iftikhar Ahmed against Order in Original dt. 3936. The Commissioner (Appeals) upheld the OIO No. 3936 dated 31.10.2006 thereby rejecting the Appeals filed by M/s Neelam Prints as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Prints was not called for and accordingly set aside. Further as the SCN has been issued after a period of one year hence time barred. 7. Shri S.J. Sahu Ld. AC(AR) appearing on behalf of revenue reiterates the findings of impugned order and supports the same. 8. We have heard both the sides and perused the records. The issue to be decided is as to whether in the facts of the case the appellants were entitled for the exemption under the Notification No.7/22003-CE dated 01.03.2003 and whether the Penalties were imposed correctly against them. We find that Sr.No.3 of the said notification exempts goods specified therein processed without the aid of power or steam, with or without using of machines. There is no explanation has been inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under OIO No.3936 dated 31.10.2006 and upheld under impugned OIA is set aside. As regards enhancement of penalty to ₹ 10,000/-, we observe that Rule 25 prescribes the maximum amount of penalty which can be imposed and it is not a mandatory penalty. Therefore, we set aside the impugned OIA to the extent of enhancing the penalty to ₹ 10,000/-. The contention of the appellants as regard limitation is not acceptable in the facts of the case. The penalty imposed upon M/s Neelam Prints under Section 11AC being mandatory in nature cannot be reduced and hence we uphold the same. 10. In view of the above, we uphold the OIA as regards confirming the demand of ₹ 1,70,108/- along with interest and imposing penalty under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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