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TMI Blog2008 (1) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... f the grounds of appeal in the present case would show that the Revenue has not at all challenged the finding of fact given by the Tribunal against the assessees. The question sought to be raised does not arise against the respondent/assessee in the facts and circumstances of the case. Thus, we find no infirmity in the orders of the Tribunal and therefore, the appeal is dismissed. - 100 of 2007 - - - Dated:- 31-1-2008 - Satish Kumar Mittal and Rakesh Kumar Garg, JJ. [Order per : Rakesh Kumar Garg, J.]. - The present appeal has been filed by the Commissioner of Central Excise Commissionerate, Rohtak under Section 35G of the Central Excise Act, 1944 against the order dated 28-3-2006 (Annexure P-2) passed by the Customs, Excise Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the premises of respondent from the premises of the consignee/stockists for M/s. I.P.C.L., Baroda. Thus it was alleged that M/s. Aravali India Ltd. in connivance with the consignment stockists were causing heavy loss to the exchequer. The adjudicating authority vide its order dated 9-2-2004 ordered as under :- "(i) I order recovery of modvat credit of Rs. 86,87,465/- from M/s. AIL, Hansi under Rule 57-I of erstwhile Central Excise Rules, 1944 read with proviso to Section 11A(1) of Central Excise Act, 1944 by invoking extended period of five years; (ii) I order recovery of interest at the appropriate rate on wrongly availed modvat credit or Rs. 86,87,465/- from the party under Section 11AB of Central Excise Act, 1944; (iii) I impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed Appeal No.E/2140/04 filed by Shri Anil Kumar Goel, partner of M/s. Rohan Roadways, reduced the penalty imposed by the authority below against M/s. S.K. Co. Pvt. Ltd., Gurgaon in Appeal No.E/2031/04 and allowed the appeal No.E/2032/04 filed by the respondent/assessee and deleted the penalty of Rs. 10 lacs imposed upon him under Rule 209A of the erstwhile Central Excise Rules, 1944. The present appeal has been filed by the Revenue against the order of the Tribunal dated 28-3-2006 passed in Appeal No. E/2032/04 in the case of respondent/assessee. 5. The question of law as raised by the learned counsel for the appellant is misconceived. The question of law sought to be raised by the appellant does not arise in the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Moreover a perusal of the grounds of appeal in the present case would show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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