TMI Blog2014 (5) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... any interference. Such amount is not even sufficient to set off the expenses incurred by the department in prosecuting the present proceedings forced upon the department for the wrongful and changing stand of the appellant - Decided against Assessee - Central Excise Appeal No. 39 of 2011 - - - Dated:- 12-9-2011 - Hemant Gupta and Jaswant Singh, JJ. Shri Vikrant Kackria, Advocate, for the Appellant. Shri H.P.S. Ghuman, Sr. Standing Counsel, for the Respondent. ORDER Present appeal has been preferred under Section 35G of Central Excise Act, 1944 (for short the Act ) arising out of an order passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi on 30-6-2010 [2010 (262) E.L.T. 775 (Tri.-Del.)] upholding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the appellant has vehemently argued that the variations in d factor was due to wear and tear of the machinery and the said fact has been accepted by the Tribunal in its order dated 30-6-2010. Therefore, the penalty could not be imposed under Rule 96ZP(1). It is also argued that 100% penalty has been imposed upon the appellant without giving any reasons and such imposition of penalty runs counter to the judgment of this Court in CWP No. 18099 of 2009 Bansal Alloys Metals Pvt. Ltd. v. Union of India decided on 8-11-2010 [2010 (260) E.L.T. 343 (P H)]. 5. This Court while issuing notice of motion found that the following two questions arise for consideration : (iv) Whether the Tribunal was correct in imposing pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liability in terms of Section 11AC of the Act, but that is not the situation under Rule 96ZP(1). But we do not find any merit in the said argument. The proviso, contemplating discharge on payment of part of penalty was inserted vide Section 100 of the Finance Act, 2000 w.e.f. 12-5-2000 i.e. after the relevant period in the present case. Therefore, the benefit of the proviso cannot availed by the Appellant during the relevant year. The petitioner has thus suffered no prejudice for the reason that the show cause notice was served as that under Section 11AC of the Act. 9. Now coming to question No. (v), we find that the appellant has improved its stand than what was taken in the reply to the show cause notice. Earlier, the stand of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odically replaced. It is common knowledge that the main machinery will get damaged if the bushes are not periodically replaced. Commissioner, in all fairness, accepted the opinion of the technical experts and redetermined the d factor as 258 and which the appellant has no problem in the appellant firm that the semi-skilled workers changed the d factor during repairs carried out a couple of months earlier to the visit by the officers does not deserve to be accepted. I am surprised at the claim that the repairs of machinery were done by the semi-skilled workers. It was incumbent upon the appellant to intimate any change in parameter which has a bearing on the annual production capacity determination. It is not disputed by the appellants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance to the date of clearances of the goods. Therefore, the differential duty requires to be paid along with interest applicable. 12. The appellant improved its stand at different stage of proceedings. The variation in the d factor was found as a matter of fact, therefore, the mens rea in not declaring the increased capacity is apparent. Though the authority has imposed 100% of the short amount of the duty as penalty but keeping in view the fact the amount of penalty is only Rs. 1,23,620/-, we do not find that such amount calls for any interference. Such amount is not even sufficient to set off the expenses incurred by the department in prosecuting the present proceedings forced upon the department for the wrongful and changing stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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