TMI Blog1997 (9) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Collector holding that the appellant firm had cleared certain excisable goods without payment of duty. The longer period of limitation was invoked alleging that the appellants had failed to file classification list and had not complied with the required excise formalities including payment of duty. Penalty was imposed on the firm under Rule 173Q while the partners were proceeded against under Rule 209A. 2. Shri Rohan Shah, learned Counsel for the appellants, stated that, on merits, he could not advance any argument as it is the admitted position that the notification which was in force earlier under which they had cleared their goods without payment of duty, was not applicable to their goods after the relevant entry therein relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they had filed a refund claim which had been allowed by the Assistant Collector when they got a refund of Rs. 24,841/-. It was therefore, contended by Shri Shah that the demand confirmed in the impugned order besides being hit by limitation for the above said period, was also in excess of the amount actually due from them. 3. Touching the aspect of penalty imposed on the firm as well as the partners, learned Counsel contended that the circumstances of the case do not warrant the imposition of any penalty as there was no intention to evade duty. They had also taken up the matter with the departmental officers regarding the procedure to be followed by them after they had come to know the correct position in law regarding the dutiability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to the relevant portion of the stay order and pointed out that the fact that the appellants had not filed classification list and had not removed the goods after payment of duty showed that the offence has been committed which would justify the decision taken by the Collector. The longer time period was also justified on the above ground. As regards the penalty imposed on the partners of firm under Rule 209A, he referred to the relevant finding of the Collector in the impugned order that the removal of the goods without payment of duty would not have taken place without the knowledge of the concerned partners. He therefore, pleaded that the appeal may be dismissed. 6. We have taken note of the rival submissions. We have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice as RT 12 for such clearance should normally have been filed before 5th July, 1988. The impugned order, as pointed out during the arguments by the learned Counsel, does not specify the amount of duty but that task was left to be completed by the Assistant Collector. We are not in a position to assess the actual duty that would be leviable in respect of such clearances in the absence of the relevant data in the impugned order. It is reported by Shri Shah that it has not been worked out. Since the full data has not been made available about the duty to be recovered from the appellants for the clearances made in the month of June, 1988, we have no alternative but to remit the case to the jurisdictional Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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