TMI Blog2002 (4) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... directed against the Order-in-Appeal No. 692/2001-C.E., dt. 18-10-2001 passed by the Commissioner of Customs Central Excise (Appeals), Bangalore. 2. The issue relates of imposition of penalty under Rule 173Q of the Central Excise Rules, 1944. It was alleged in the show cause notice that the party had removed Modvat inputs without payment of duty/reversal of Modvat credit. The Assistant Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clandestine, as they have removed under the cover of delivery challans. There was no suppression, as the mistake has happened in the course of transaction. These pleas were rejected by the authorities below. Hence this appeal. 3. It was contended by the Counsel on behalf of the party that the penalty cannot be imposed under Rule 173Q because of the fact that when the mistake was pointed out, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the facts of this case since that case relates to Modvat credit wrongly taken and the same has been reversed before issue of show cause notice. He said that similarly the decision of R.S. Graphics referred to above and relied upon by the Counsel is not relevant to the facts of this case since in that case show cause notice was issued only for imposition of penalty but in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In the case of Siemens Ltd. v. CCE, Aurangabad reported in 1999 (34) RLT 831 (CEGAT), the Tribunal has held that penalty is not imposable when the assessee has taken corrective steps before issue of show cause notice. Similarly in the case of Sub Zero Icecream Pvt Ltd. (supra), the Tribunal has taken the view that since the party has paid the duty on realising mistake much before issue of sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng payment before issue of show cause notice and same was appropriated in the respective orders. The imposition of penalty depends on the facts and circumstances of each case. In the facts and circumstances of this case and following ratio of decisions referred to above by the Counsel, I am of the view that there is no justification for imposing penalty in the instant case. Accordingly I set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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