TMI Blog2018 (1) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... mbled. Clearly in the present case complete or finished articles were never presented in unassembled or disassembled conditions. Penalty u/s 173Q - Held that: - Merely by not mentioning the sub-clause the penalty cannot be avoided - As regards the bonafide belief entertained by the appellant regarding the claim of exemption entry under notification in respect of machinery falling under 8419.00 we find that the appellant was very much aware about legality of the issue and therefore they have represented to the government via CII to make uniform rate of machine and parts i.e. 10%. Therefore appellant knowingly claimed the wrong exemption - penalty upheld. Appeal dismissed - decided against appellant. - Appeal No. E/452/2008-EX[DB] - A/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on the Tribunal s order no. A/429-432/WZB/MUM/2006/C-I/EB dated 28.02.2006 in the appellant s own case wherein the issue on merit has been decided against the appellants. Therefore the issue on merit is no longer res integra. As regards penalty under Section 173Q he submits that both the lower authorities have clearly discussed regarding the nature of contravention made by the appellant in the discussion and finding of the order. Therefore, even though sub clause is not mentioned in the operative part of the order, rule 173Q penalty is rightly imposed. He submits that the appellant was very much aware that if the parts are cleared in dismantled form the duty is payable @15% as against 10% paid by them, and for the revision of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led conditions. This position has been admitted by Shri Hidaytullah. This is further confirmed from the manner in which the order was placed, which was perused by us at the instance of Shri Hidaytullah relating to M/s MRPL, which was essentially for specific parts mentioned therein having a distinct purchase price different from each other. The Tribunal decision cited by Shri Hidaytullah does not come to his rescue as in those cases the goods were evidently cleared in a CKD condition. Besides, in the Shirke s case pointed out by Shri Hidaytullah which refers to manufacture in phases paragraph 5 of the same order refers to supply to M/s Myssore Construction Co. Ltd. in which the whole goods were cleared under one gate pass GP1 No. 49/11.9.86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority as well as the Commissioner (Appeals) have discussed in detail the nature of contravention committed by the appellant. As regards the bonafide belief entertained by the appellant regarding the claim of exemption entry under notification in respect of machinery falling under 8419.00 we find that the appellant was very much aware about legality of the issue and therefore they have represented to the government via CII to make uniform rate of machine and parts i.e. 10%. Therefore appellant knowingly claimed the wrong exemption. It is also observed that as against the duty demand of ₹ 96,40,472/- penalty of ₹ 25 lakhs was imposed under Section 173Q which is found to be reasonable which does not require any interference. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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