TMI Blog2004 (6) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been referred to us for our opinion :- (I) Whether the Hon'ble Tribunal was justified in maintaining the order of imposition of penalties though reduced in view of its own observation and finding that duty liability does not arise hence the demand of duty is not correct and not sustainable in law? (II) Whether the order of imposition of penalties can be sustained when the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for pre-modvat period duty paid inputs when no Rule required such permission/intimation? (V) Whether the CEGAT after holding as not proved the only charge levelled against the assessee in terms of Rule 57F, sustain the imposition of penalty in terms of non-observance of a new Rule 173-H which has never been enforced by the department in respect of duty paid inputs purchased from the marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich indicated that the glass bottles sold, were in good condition and were of usable nature. It was further alleged that neither the duty was paid nor Modvat credit was reversed on clearance of these motivated glass bottles. A show cause notice was issued to the assessee to explain as to why duty be not demanded on the glass bottles sold. The Commissioner demanded duty of Rs. 19,54,994.00 under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of duty is not correct and not sustainable in law." 4. However, the Tribunal went on to observe that penalty was imposable because even if the bottle were of pre-modvat period it was necessary for the appellant to intimate the department, which they do not do. However, penalty was reduced to Rs. 5 lacs on the assessee and Rs. 3 lacs on Shri Ashish Sethi, Director of the Company. As S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit was taken. If Modvat credit is not taken on these bottles then of course it is open to the assessee to sell the bottles in the market and there can be no restriction on the same. No permission is required from the Commissioner to clear the goods on which Modvat is not taken. 7. In our opinion the order of the Tribunal dated 6-10-98 is contradictory as has rightly been urged by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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