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2016 (1) TMI 832 - CESTAT MUMBAI

2016 (1) TMI 832 - CESTAT MUMBAI - TMI - Penalty imposed on demand not sustainable - clandestine removal of the goods which were in contravention of various Central Excise Rules - Held that:- The show cause notice issued to the respondents clearly and unequivocally accepts the fact that demand of duty liability cannot be sustained as the demand for duty in show cause notice is beyond the period of 5 years. Provisions of section 11 A of the Central Excise act 1944, mandates the Department to reco .....

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esentative. The judgement of Hon’ble Supreme Court in the case of HMM Ltd [1995 (1) TMI 70 - SUPREME COURT OF INDIA ] will be directly applicable wherein their Lordships have clearly settled the law, that question of penalty would arise only if the Department is able to sustain its demand. - Decided in favour of assessee. - Appeal No. E/250/07 - A/85112/16/EB - Dated:- 4-12-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner : Shri Ajay Kumar, .....

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of clandestine removal of the goods which were in contravention of various Central Excise Rules. 4. The argument of the learned departmental representative is that penalties are imposable as the allegation of clandestine removal is not quashed but the demand has not been raised only on the ground that the demand is for the period beyond 5 years from the date of show cause notice. He would take us through the show cause notice and the findings recorded and submit that the adjudicating authority .....

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admitted that there was clandestine removal. 5. Learned Counsel on the other hand would draw our attention to the facts of the case, that show cause notice itself accepts that there cannot be any demand of duty as allegation of clandestine removal was for the period 1995 - 96 to 1998 - 99. He would draw our attention to the order in original and submit that the adjudicating authority has clearly recorded that the judgement of the Hon ble Supreme Court in the case of HMM Ltd - 1995 (76) ELT 497 w .....

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er dealer even if the said dealer is a HUF. He would also draw our attention to the judgement of the Tribunal in the case of Godrej soaps Ltd to submit that when the demand gets dropped on any account penal provisions cannot survive against the assessee. He produces a copy of the judgement of the larger bench as reported at 2004 (174) ELT 25. 6. We have considered the submissions made by both sides and perused the records. The issue involved in this case is whether penalty can be imposed on the .....

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