TMI Blog2005 (4) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... lly unjustified and unwarranted, is ancillary to power of entertaining and deciding the appeal conferred on the Appellate Tribunal by Section 35B of the Act. We, therefore, hold that this is a fit case for staying the impugned order to the extent it sets aside the penalty imposed on the respondent under the Order-in-original. The impugned order-in-appeal is, therefore, stayed to the extent that it has set aside the penalty imposed on the respondent under the order-in-original and this application is allowed accordingly. - HON'BLE R.K. ABICHANDANI, J. (PRESIDENT) AND K.C. MAMGAIN, MEMBER (T) For the Appellant : S.C. Pushkarna, JDR For the Respondent : K.K. Anand, Adv. Order R.K. Abichandani, J. (President) 1. This Stay Application is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived from the open market. In paragraph 7 of the show cause notice, it was specifically stated that proprietor of the respondent was summoned to further investigate his role in passing of inadmissible Modvat credit to various manufacturers on the basis of the sale invoices of M/s. Majestic Industries Limited, without actually physically sending the goods as detailed in their sale invoices. In his statement dated 15-9-2000, the proprietor admitted of having received only the Modvatable invoices from M/s. Majestic Industries Ltd., Ludhiana and subsequently issuing Modvatable invoices as second stage dealer against those invoices to his manufacturer customers for the sake of passing on the Modvat credit only. He categorically admitted of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay the penalty amount while the appeal is still pending. The learned counsel for the respondent initially drew our attention to the provisions of Section 35F of the Act and tried to contend that the question of stay would arise only in the context of an assessee who is required to deposit an amount under Section 35F of the Act. The learned Authorised Representative of the Department referring to the provision of Section 35B as well as 35C(2A) of the Central Excise Act, 1944, submitted that, the Tribunal has ample power to stay the order of setting aside the penalty and that power of stay is not confined to matters falling under Section 35F of the Act. 6. The inherent power of a Tribunal was upheld by the Apex Court in ITO v. M.K. Mohamme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 47,900/- as stated by the learned counsel for the respondent after verifying from his record. Under Rule 173Q, penalty not exceeding three times the value of the excisable goods could be imposed in respect of any contravention of the nature referred to in clause (bbb) under which the penalty was imposed on the respondent by the order-in-original. It is, therefore, not open for the respondent to contend that the penalty amount was relatable to the amount of duty under Rule 173Q. 8. In the present case, the appellant has made out a strong prima facie case for staying the impugned order because the Appellate Authority has not at all considered the case in the context of the penalty imposed on the respondent as dealt with by the Original Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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