TMI Blog2006 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ete Armored Units (CCAU) which are excisable and cleared the same to M/s. Visakhapatnam Port Trust (hereinafter referred to as VPT) without payment of Central Excise duty. The Adjudicating Authority demanded an amount of Rs. 1,10,75,644/- from the appellant being duty on 11,496 Nos. of CCAU manufactured by him. The adjudicating authority imposed equal penalty under Section 11 AC of the Central Excise Act. Interest under Section 11 AB was also demanded. Further he imposed a penalty of Rs. 1,00,000/- on M/s. VI under Rule 209A of the Central Excise Rules read with Section 38A of the Central Excise Act. The appellant, Shri Raju, strongly challenges the findings of the adjudicating authority. 3. S/Shri KS. Ravi Shankar, N. Anand and A. Sarves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided against the party, the question of suppression of facts, willful mistakes fraud, etc. could not arise. Second show cause notice is untenable and proviso to Section 11A could not be made applicable. He relied on the following case laws:- (i) ECE Industries Ltd. vs. CCE - 2004 (164) ELT 236 (S.C.) (ii) Hyderabad Polymers (P) Ltd. vs. CCE, Hyderabad 2004 (61) RLT 621 (SC) = 2004 (166) ELT 151 (SC) (iii) Nizam Sugar Factory vs. CCE, 2006 (74) RLT 564 (S C) = 2006 (197) ELT 465 (S.C.) (c) The Department had already concluded that the appellant was only a Contractor and in the present proceedings, the Department took a diametrically opposite stand. This is not tenable. (d) Assuming without admitting that the appellant is a manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion work only. (f) It is admitted facts in the present case, CCA units were made at site allotted by M/s. VPT and it is not a case of Revenue that CCA units were not used in the break waters. Therefore, the above said Board's Circular is clearly applicable and binding on the Revenue as held by the Constitution Bench of 5 judges of the Apex Court in the case of CCE Vs. Dhiren Chemicals Industries, 2001 (47) RLT 881 (SC) = 2002 (139) ELT 3 (S.C.). (g) The penalty imposed is illegal and the impugned order does not bring out a scintilla of evidence as regards "culpable mental state" to warrant imposition of penalty and interest. The impugned order is therefore legally untenable. 5. The learned Jt. CDR reiterated the Order-in-Original. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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