9911796707
TMI Blog2000 (7) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise duty of Rs. 52,63,999.43 P from M/s. Kinotone or M/s. International Talkie Equipment Company Ltd. (the appellants herein) on the ground that M/s. Kinotone (Central Excise license holder for manufacture of excisable goods such as parts of Cine Projector Equipment) M/s. Cine Lamp (SSI unit engaged in the manufacture of parts of Cine projectors viz Arc lamp) availing full exemption under Notification Nos. 83/83-C.E., dated 1-3-1983, 85/85-C.E., dated 17-3-1985 and No. 175/86-C.E., dated 1-3-1986 and the appellants herein were inter-linked and inter-connected units each controlled by one Adalja family and had engaged in the manufacture and clearance of excisable goods viz. complete Cinema projectors and availed the benefit of exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 209-A. Hence this appeal 3. We have heard Shri D.N. Mehta, learned Advocate, who submits that the penalty imposed under Rule 209-A cannot be sustained in view of the fact that the show cause notice proposed penal action only under the provisions of Rule 173-Q and Rule 209-A was not invoked in the notice. He therefore, prays for setting aside of the same. 4. The prayer is opposed by the learned DR Shri M.P. Singh who contends that citing of a wrong Rule of provision does not vitiate the action taken by the Commissioner against the appellant and since the appellant had ample opportunity to show cause against imposition of penalty and further since the same evidence which was relied upon in the show cause notice for proposal of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice does disclose the intention of the Department to impose penalty upon the appellant, imposition of penalty under another appropriate provisions of the Central Excise Rules, 1944 would not vitiate the proceedings when they are fully informed of the charges against them and were called upon to show cause why penalty should not be imposed on them. He has relied upon the decision of the Tribunal in the case of T.S. Narayana Rao v. Collector of Customs [1990 (50) E.L.T. 328] in support of his finding. However, we agree with the learned Counsel that it was not open in law for the Collector to impose penalty under Rule 209-A as the appellant had no opportunity to represent against imposition of penalty under this Rule. The ingredients of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to confiscate the goods and impose penalty as an Adjudicating Authority under other provisions because when an Authority has power to do a certain act and he does the same in exercise of such power but with reference to a wrong provision of law, that would be a irregularity and would not vitiate such order. This is not an answer to the point in dispute before us. 8. The decision of the Supreme Court in the case of Collector of Central Excise Calcutta v. Pradyumna Steel Ltd., 1996 (82) E.L.T. 441 (S.C.) also does not advance the case of the Revenue. The Court held that mere mention of wrong provision of law when the power exercised is available although under a different provision is by itself not sufficient to invalidate exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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