2003 (2) TMI 68 - SUPREME COURT

Whether the Tribunal erred in upholding the order of the Excise authorities in invoking the proviso to Section 11A of the Central Excise Act, 1944; if so, whether the order confirming penalty is sustainable?

Held that:- The ground that the assessee has suppressed the fact that M/s. P & B Laboratories was also using the logo for availing the benefit under the notification cannot be a valid reason to invoke the proviso to Section 11A of the Act. The proviso to Section 11A is not available to the Revenue. Consequently, we hold that the CEGAT erred in confirming the order of the Collector.

As about the penalty imposed on the assessee it is not in dispute that if the proviso to Section 11A of the Act cannot be called in aid, imposition of penalty cannot be justified under Rule 173Q of the Central Excise Rules, 1944. [See: Collector of Central Excise v. H.M.M. Ltd., 1995 (1) TMI 70 - SUPREME COURT OF INDIA] and Nagpur Alloy Castings Ltd. v. Collector of Central Excise [2002 (4) TMI 58 - SUPREME COURT OF INDIA]. The order imposing penalty is thus unsustainable. In favour of assessee