TMI Blog2004 (4) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... last two sentences of para 31 of the Final Order No. 769/2003, dated 23-9-2003 makes it clear that the Hon ble Third Member (J) agreed with the separate order of Hon ble Member (J) [of the Regular Bench] in so far as mis-declaration/suppression was concerned. Both the Hon ble Members have agreed and appreciated the Petitioner s submission regarding mis-declaration. However, the Hon ble Third Member (J) recorded the following conclusion :- Having agreed, on the merits of the case, with the findings recorded by learned Member (Technical), I have got to endorse his decision in regard to penalty as well . (2) The Hon ble Third Member (J), was fully convinced that there was no warrant to impose mandatory penalty under Section 11AC, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel for the applicants confines himself to the Section 11AC penalty and submits that, where the entire amount of duty was paid at the investigative stage of the case, there was no warrant for proposing any penalty under Section 11AC. However, on a query from the Bench as to whether any plea to this effect had been raised either in the reply to the show cause notice or atleast in the memorandum of appeal filed with the Tribunal, ld. Counsel s answer is in the negative. 5. Learned SDR submits that all the submissions with reference to the filing of Rule 173B Declaration dated 8-2-1996 were duly considered by the Bench in the final order. Relying on the Supreme Court s decision in CCE, Calcutta v. A.S.C.U. Ltd. - 2003 (151) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicants. The case of Richardson Cruddas Ltd. v. C.C.E. [2002 (145) E.L.T. 168 (T) = 2002 (49) RLT 239] relied on by the applicants is not comparable inasmuch as, in that case, ROM application was allowed because a specific plea made in the appeal memo had not been considered in the final order. In the case of Bussa Overseas Properties Ltd. v. C.C [2002 (148) E.L.T. 328 (T) = 2002 (50) RLT 231] cited in the present application, similarly, certain submissions had not been considered in the final order and the non-consideration of submissions was held to be a mistake apparent from the record. In the instant case, the plea raised now by the learned counsel against the penalty had not been raised earlier at any stage. As rightly point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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