TMI Blog1987 (11) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of Rs. 15,16,738.58 paise. On adjudication after receipt of reply, the Collector of Central Excise, Calcutta under his order dated 11-10-85 held the charges to be established. He confirmed the duty demand as abovesaid. He further imposed a penalty of Rs. 15,00,000.00. This appeal is against the said order. 2. We have heard Shri V. Lakshmi Kumaran, advocate for the appellants and Smt. D. Saxena for the department. 3. Shri Lakshmikumaran submitted that he would not be advancing any arguments to controvert the finding of the Collector that as alleged in the show cause notice goods had been removed without observing excise formalities and without payment of duty. He further submitted that he would not be advancing any arguments on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken. 5. It is, therefore, argued for the appellants that the show cause notice erred in proceeding on the assumption that the highest should be taken (in respect of value, length and width) and therefore the consequent quantification of duty was also in error. It appears to us that this argument is sound. We are of opinion that the average, rather than the highest, should have been taken if no sufficient material was available for ascertaining the exact figure (of value, length and width). 6. It was then submitted that duty had been demanded in respect of all processed cloth, even where the process involved was not one that gave rise to a demand for duty. This argument had been dealt with by the Collector in paragraph 8(iv) of his or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , consequently, the rate of duty will also have to be re-fixed, in cases where the rate depended on the value. 8. On the question of penalty, Shri Lakshmi Kumaran submitted that in respect of the period prior to the Ordinance 12-79 dated 24-12-79 (later Act 16 of 80), the removal would not give rise to any penalty since Section 5 specified that while duty could be demanded on the basis of the retrospective amendment, penalty could not be levied. He further submitted that the company was taken over by the present management on 22-6-1983 and the show cause notice had been issued subsequently on 7-10-83 with reference to improper removals during 1979 to 1981 and this circumstance should also be kept in mind in quantifying the penalty to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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