TMI Blog2006 (1) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the appellants were manufacturer of Elastic Yarn i.e. in the nature of rubber thread covered by yarn. The appellants in both the cases were filing the declaration as prescribed under Notification No. 13/92-C.E. earlier. During the period of investigation and the period in dispute, both the appellants had not filed the said declaration with the authorities. The premises of both the appellants were visited by the officers of Central Excise and they came to conclusion that the appellants had misdeclared their product as yarn covered with Rubber or Elastic yarn and Nylon covered with Elastic yarn thus claimed the exemption not eligible to them. The appellants had also not taken out the Central Excise Registration Certificate. A S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oximately without concession. He relies upon the decision of the Division Bench of this Tribunal in the case of Shivalik Agro Poly Products v. CCE, Chandigarh reported in 2001 (130) E.L.T. 736. In respect of imposition of penalty under Rule 173Q in the case of both the appellants he submits that SCN does not bring out any specific clause of Rule 173Q for imposition of penalty. In the absence of his specific course in the SCN, the penalty imposed under Rule 173Q is not maintainable. He relies upon the recent decision of the Hon ble Supreme Court in the case of Amrit Foods v. CCE, U.P. reported at 2005 (190) E.L.T. 433 (S.C.). 4. Ld. DR on the other hand submits that the appellants herein are not eligible for any leniency in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced the penalty imposed upon the appellants under Section 11AC. From 28-9-96 penalty is imposable which is equivalent to duty evaded from that date. He has not mentioned the quantum of penalty under Section 11AC but has left it to the lower authorities to work out the quantum of penalty. I find that the ratio of the decision of the Shivalik Agro Poly Products (supra) squarely covers the situation in this appellant s case. The appellants were manufacturing and clearing the products without payment of duty and not availing the Modvat credit. From the statement which was produced before me, if found to be correct, the appellants are eligible for availment of Modvat credit to the tune of Rs. 13 lakhs. In the case of Shivalik Agro Poly Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 7275/03 it was held as under : 5. The Revenue has preferred an appeal from the order of the Tribunal setting aside the imposition of penalty under Rule 173Q of the Central Excise Rules, 1944. The Tribunal has set aside the order of the Commissioner on the ground that neither the show cause notice nor the order of the Commissioner specified which particular clause of Rule 173Q had been allegedly contravened by the appellant. We are of the view that the finding of the Tribunal is correct. Rule 173Q contains six clauses the contents of which are not same. It was, therefore, necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of the 173Q. This n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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