TMI Blog2001 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited in RG-23A Part-II, RG-23C Part-IIC and PLA on various dates from 7-8-1996 to 26-8-1996. There is a further order of confiscation of yarns seized from the premises valued at Rs. 34,642/-. However, the same has been given an option to redeem on payment of Rs. 5000/- towards fine. There is further order of confiscation of 450 kgs. of 40s SF cons valued at Rs. 43,750/- under Rule 173Q. However, the same has been granted an option to redeem on payment of Rs. 4500/-. A penalty of Rs. 33,87,395/- has been imposed under Section 11AC of Central Excise Act besides a penalty of Rs.10,000/- on the appellant under Rule 209A and 226 of Central Excise Rules, 1944. 2. Arguing for the appellants, ld. Advocate at the outset submitted that the wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made. Notice is thus a condition precedent to a demand under sub-section (2). And the Apex Court noted that as in that case there was a contravention of the statutory provisions and the demand raised therein and confirmed without issue of show cause notice was quashed. He submits that ground taken by the Commissioner that the appellants have waived the show cause and on that basis he proceeded to confirm the demand was not accepted by the Tribunal on a similar view expressed by the Commissioner as in the case of Visu Pipes Fittings Pvt. Ltd. v. C.C.E. [1998 (24) RLT 679]. The Tribunal noted in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.E. Coimbatore [1999 (109) E.L.T. 1183 (T)] (iv) Indian Farmers Fertilizer Co-operative Ltd. v. C.C.E., Lucknow [2001 (127) E.L.T. 534 (T) = 2001 (42) RLT 616 (CEGAT) (v) A.S. Impex Ltd. v. C.C.E., Chandigarh [2001 (127) E.L.T. 442 (T) = 2001 (42) RLT 260] (vi) C.C.E. v. Charminar Bottling Company Ltd. [2000 (122) E.L.T. 80 (T) = 2000 (41) RLT 359 (CEGAT) (vii) Century Plyboard (I) Ltd. v. C.C.E., Calcutta [1999 (33) RLT 380 (CEGAT) (viii) Freedom Rubber Ltd. v. C.C.E., Chandigarh [2000 (41) RLT 159 (CEGAT)] 5. Ld. Sr. Counsel submits that the Board also by Circular No. 290/6/97-CX, dated 20-1-1997 have directed all the authorities to issue show cause notice even if the parties have waived their right to receive sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submits that penalty under Rule 209A imposed is only Rs.10,000/- which is nominal and seeks for confirmation of the order. 7. On a careful consideration of the submission, we notice that the Apex Court in the case of Gokak Patel Volkarit Limited v. C.C.E., Belgaum (supra) has clearly laid down that the provisions of Section 11A(1) (2) makes it clear that statutory scheme is that in the situations covered by sub-section (1) a show cause notice has to be issued and sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The Apex Court has further observed that the scheme is a consonance with the rules of natural justice. The pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defective proceedings against the interest of Revenue as has been noted in the said circular. It is also well laid down in the several judgments that any amounts which are deposited prior to proceedings can be considered only as deposit and not as duty. In the present case the Counsel have also produced judgment noted supra to show that penalty under Section 11AC cannot be imposed as the legislation came into effect only on 28-9-1996 and later to the date of commission of offence. On this point also, the appellants succeed. 8. In that view of the matter, the impugned order is set aside solely on the ground of non issue of show cause notice in the matter in the light of the judgments already noted supra. Thus the appeal is allowed with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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