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TMI Blog2014 (2) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Affairs. Therefore, request for change in cause title is allowed and the name of the respondent will be read as Comstar Automotive Technologies Pvt. Ltd. 2. Revenue filed this appeal aggrieved by the order of the Commissioner (Appeals) setting aside the penalty imposed on the respondent. The first ground is that the appeal before the Commissioner (Appeals) was filed with a delay of 23 days and the Commissioner (Appeals) condoned the same just based on the of submissions of the respondent that they did not receive the original copy of the order. According to Revenue, this factual submission was not verified by the Commissioner (Appeals). 3. In the matter of penalty, the facts are as follows. The respondent is a manufacturer of autom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/- under section 114A of the Customs Act, 1962. Aggrieved by the order, the respondent had filed appeal with Commissioner (Appeals). The Commissioner (Appeals) held that since duty amount and interest were paid by the respondent before issue of notice, and hence he set aside the impugned order. 7. Arguing for Revenue, Ld. AR submits that the order of the Commissioner (Appeal) is not proper in as much as he set aside the entire order of the adjudicating authority rather than the penalty imposed. 8. Further he argues that respondent was aware of the shortage of the goods as early as 31-03-2001 and they had shown shortage in their books of account but they did not make payment till 2003 when the officers visited them. This shows that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful suppression. 12. On the second issue the learned advocate for the respondent submits that the goods were actually exported through persons who visited their factory. The goods were not exported as trade goods but carried by persons going abroad. Availing the exemption under notification 2/95-CE was a mistake on their part which happened because their accounting system treated such removals as clearances to domestic tariff area and worked out duty liability as per notification 2/95-CE. When this issue was pointed, they did not contest the duty liability and they had paid the differential duty. But he submits that if they had followed proper procedure of filing ARE-2 or shipping bill, they would not have to pay any duty whereas they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone through the provisions of section 114A of the Customs Act. In terms of the said section, penalty is to be imposed only in a situation where duty is short levied or short paid on account of collusion or any willful misstatement or suppression of facts. I find that all the information that was required by Revenue for arriving at this short fall was available in their books of accounts. A question can arise whether declaration of information in the books accounts is sufficient disclosure to the department and whether it can be taken as a case of suppression when the facts are reflected in the balance sheet but not specifically declared to the department. This issue is to be decided with reference to facts of each case. In the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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