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TMI Blog2021 (5) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Excise Appeal No.79477 of 2018 - FINAL ORDER NO. 75248/2021 - Dated:- 12-5-2021 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) Shri Sourav Bagaria Shri Indranil Banerjee, both Advocates for the Appellant (s) Shri S.S.Chattopadhyay, Authorized Representative for the Respondent (s) ORDER The present appeal has been filed by the Company, M/s. Manaksia Steel Pvt Ltd, against Order-in-Appeal dated 11.09.2018 passed by the learned Commissioner (Appeals), Kolkata II, in the appeal filed by the Company against Order-in-Original dated 21.12.2017 passed by the learned Asst. Commissioner, Sankrail Division. The learned Commissioner (Appeals) vide the impugned order has upheld the duty demand of ₹ 35,98,637/- along with i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is illegal. He also submitted that the learned Commissioner (Appeals) vide the impugned order has made a detailed observation to hold that the charge of clandestine clearance of excisable goods have been made on assumptions and presumptions without any positive evidence based on which penalty amount has been set aside. He further submitted that the learned Commissioner has not given any basis to uphold the duty demand when the very charge of clandestine clearance has been held by him to be not proper. He accordingly prayed that duty demand be also set aside. 5. The learned Authorized Representative appearing for the Revenue reiterated the findings of the lower authority and prayed that the appeal filed by the appellant Company be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the impugned notice. Therefore, I find that specific charge of penal provision was not mentioned in the impugned notice and the provisions of rule 25 of the said Rules and section 11AC of the said Act were incorporated simultaneously in the instant notice well as the O-I-O. Therefore, in view of the above decisions, penalty imposed under is not sustainable. While upholding the duty demand, without any basis, the following observation has been made in para 25:- Although, the appellant no. 1, had paid ₹ 40,00,000/- against the demand as discussed above and the lower authority ordered for appropriation of ₹ 40,00,000/- already paid by the appellant no. 1 towards liability of duty and interest, which needs no interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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