TMI Blog2005 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by order dated 30-10-2002. Commissioner moved the Bombay High Court in W.P. No. 5689/03 the Hon'ble Court vide order dated 24-9-2004 set aside the order dated 30-10-2002 of this Tribunal and ordered - "We heard the learned senior counsel for the revenue and the learned counsel for the respondents. Rule. Returnable forthwith. The writ petition is located on Board for final hearing. By consent, the impugned order dated 2-11-2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai, is set aside. The delay in making application by the revenue under section 35A(4) stands condoned. The Tribunal shall now hear the said application made by the revenue under section 35A(4) on its own merits. Liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order - "15........ I find that there is a short levy which occurred due to partly suppression of relevant facts and partly in ignorance of the correct Rules to be made applicable in this regard in view of the fact that such clearances are being assessed for the first time in the case of the assessee and there was an element of ignorance and lack of proper guidance by the departmental officers it is not proposed to penalize the assessee".......... Therefore it can be held that the conduct of the assessee, the officers and the first attempt at interpretation were the reasons arrived at for not imposing penalty on the assessee. We find these reasons to be exhibiting a 'bona fide' no penalty to be valid. Penalty cannot be arrived at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hearing both sides waiver of pre-deposit, we proceed to decide this appeal also as we find - (i) Imposition of penalty under Rule 173Q is totally illegal since Chapter VIIA provision do not apply to EOU under the Central Excise Rules, 1944 due to Rule 173A(2). Proviso to Rule 11A(1) was not invoked in this notices for the reasons as arrived by the Commissioner in this order dated 31-12-1998 upheld by us penalty is not called for is to be set aside and we find no contumacious conduct or deliberate defiance of law. (ii) There is force in the plea made that the order has travelled beyond the proposals made in the Show Cause Notice as regards the proposed valuations. A new case cannot be allowed to be set up. Orders tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
