TMI Blog2003 (5) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Santosh, SDR, for the Appellant. Shri Jitender Singh, Advocate, for the Respondent. [Order per : Justice K.K. Usha, President]. When this application for stay No. E/S/2178/2002-NB (A) in Appeal No. E/2814/2002-NB (A) filed by the Revenue challenging the order passed by the Commissioner (Appeals) dated 14-3-2002 came up for hearing it was felt that the above appeal itself can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944. The said fabrics were released provisionally to the assessee on execution of B-II bond with security with a direction that the assessee shall not avail deemed Modvat Credit on clearance of the said provisionally released fabrics in accordance with Notification No. 29/96-C.E. (N.T.), dated 3-9-1996. Later on scrutiny of the RT-12 returns filed by the assessee, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods without payment of duty no action could have been taken by applying the proviso to the notification. On the above basis the Commissioner (Appeals) reversed the finding regarding demand of duty. But he confirmed the imposition of penalty on the ground that the assessee had availed of credit in contravention of the terms and condition of the provisional order. Aggrieved by the first part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with intent to evade payment of duty. 4. A reading of the above provisions would clearly show that the benefit of Notification can be denied only in case where duty has not been levied or paid or has been short-levied on the final products. In the facts of the present case so long as final products had not been removed, it cannot be contended that duty has not been levied or paid or has been sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We find merit in the above contention raised by the appellant. The reasons given by the Commissioner (Appeals) for sustaining the penalty are not sufficient for imposition of penalty under Rule 173Q. It is also relevant to note that once it is found that benefit of Notification No. 29/96 cannot be denied to the appellant then no penalty should be attracted for appellant taking deemed credit. For ..... X X X X Extracts X X X X X X X X Extracts X X X X
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