TMI Blog2010 (7) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... e first time that the appellant wanted to file these documents before the Tribunal. The Tribunal, in these circumstances, rightly rejected the prayer of the appellant and held that there was no evidence on record that the goods which were sent for job workers were received by manufacturer, the Modvat Credit was wrongly availed by the appellant. – Decided against the assessee - 10/2006 - - - Dated:- 19-7-2010 - Through: Mr. C. Hari Shankar, Advocate with Mr. Jagdish and Mr. P.K. Singh, Advocates Through: Mr. Satish Kumar, Sr. Standing Counsel for Customs Central Excise CORAM:- HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE REVA KHETRAPAL A.K. SIKRI, J. (Oral) 1. By means of this appeal the appellant has ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- utilized for payment of Central Excise duty should not be demanded under rule 57-1 of the Central Excise Rules, 1944; and (iii) Penalty should not be imposed on M/s Noble Moulds Pvt. Ltd. K-87, Udyog nagar, Delhi presently situated at E-14, DSIDC Complex, Nangloi, New Delhi for contravention of Central Excise Rules, 1944 under the provisions of rule 57-1 read with rule 173 Qibid. (iv) Interest @ 18% per annum should not be charged as per provisions of rule 57-1(5) of the Central Excise Rules, 1944. (v) Penalty should not be imposed upon Shri Sarbjit Singh, Director and Shri Lal Jha, Authorised Signatory of M/s Moble Moulds Pvt. Ltd. New Delhi under rule 209A of the Central Excise Rules, 1944. 4. The appellant was called upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the show cause notice, l did not apply Section 11AC could be invoked, even though it did not find mention in the show cause notice. According to the Commissioner (Appeals) it was permissible because of the reason that Rule 173Q of the Central Excise Act had been made subject to Section 11 AC of the Act. The appellant preferred further appeal before the CESTAT which was dismissed by the Tribunal vide orders dated 8th July, 2004. Reading of this order would demonstrate that only first question was argued before the Tribunal. Though in the appeal filed by the appellant, the appellant had specifically taken the ground of non-permissibility of imposing the penalty under Section 11AC of the Act, the said order does not deal with this issue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Section 11AC was not considered by the Bench. 2. We find that evidence showing that the goods were received by the manufacturer are now produced first time. This evidence was not produced before the lower authorities as well as at the time of final hearing of the appeals. Further we find that the issue of penalty was not argued, therefore, it cannot be said that there is mistake in the final order for him considering the issue of penalty. In these circumstances, we find no merit in the application. The same is dismissed." Challenging this order, present appeal is preferred. 6. In so far as the first issue is concerned, it is a matter of record that the appellant had never filed any document in support of this plea either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve any explanation in respect thereof, no order under such provision can be passed. It would clear amount to violation of principle of natural justice that a person without issuing show-cause notice under Section 11AC of the Act is fastened with the penalty in those proceedings. In a recent judgment rendered by the Apex Court in Kushal Fertilisers (P) Ltd. Vs. The Commissioner of Customs and Central Excise, Meerut 2009 (7) SCALE 476 this aspect has been dealt by the Supreme Court in the following manner:- "19.Section 11A of the Central Excise Act, 1944 provides for penalty. It, therefore, requires strict consideration. Period of limitation provided for in the Act bars the jurisdiction of the Commissioner to initiate a proceeding for impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that neither the show cause notice nor the order of the Commissioner specified which particular clause of Rule 173Q had been allegedly contravened by the appellant. We are of the view that the finding of the Tribunal is correct. Rule 173Q contains six clauses the contents of which are not same. It was, therefore, necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of the 173Q. This not having been done the Tribunal‟s finding cannot be faulted. The appeal is, accordingly, dismissed with no order as to costs." 10. Learned counsel for the respondent sought to argue that in the appeal filed before the Tribunal though this contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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