TMI Blog2016 (5) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, there is no question of recovery of any differential duty on the shrinkage in this case. As a result, the impugned demand is not sustainable. When the impugned demand itself is not sustainable, the question of penalty in relation thereto under Rule 25 of Central Excise Rules, 1944 would not arise. Imposition of penalty under Rule 25 - Contravention of the provisions of Notification 52/2003-Cus dated 31.03.2003 and Notification 22/2003 date 31.03.2003 - Held that:- the foremost consequence of contravention of provisions of an exemption notification is denial of benefit thereof. It is found that the adjudicating authority has allowed benefit of the said notification to the appellant. It means that the so called contravention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the goods sent under the said 164 challans were not received back within 90 days nor was any evidence submitted of the said goods having been exported from the job workers premises. The primary adjudicating authority vide the impugned order held that the goods sent for job work under the said 164 challans were either exported from the job workers premises or were received back except that the quantity received back was short by 7734.79 meters, and therefore, the duty was recoverable on the said quantity short received and consequently the impugned order confirming the demand was passed. 2. Ld. Advocate for the appellant has contended that: * The entire quantity of goods sent to job worker under 164 challans was eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. 5. It is seen that the entire demand pertains to the shortage of 7734.79 meters of fabrics which was noticed when the fabrics cleared under 164 challans was received after job work. We find that this shortage is approximately 3% of the total quantity of fabrics sent for job work and as per the report dated 09.05.2008 of the Textile Committee, Ministry of Textile, Export Promotion and Quality Assurance Division, Nagpur, submitted by the appellant on 11.12.2015 the shrinkage in the fabrics of the type sent for job work under the said 164 challans ranges from 2.01% to 8.49%. Thus, the shrinkage in the present case is well within the reasonable range. Even otherwise, it is observed that the Assistant Commissioner Central Excise Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no question of recovery of any differential duty on the shrinkage in this case. As a result, the impugned demand is not sustainable. When the impugned demand itself is not sustainable, the question of penalty in relation thereto under Rule 25 of Central Excise Rules, 1944 would not arise. 7. As regards the penalty of ₹ 5 lakh imposed under Rule 25 for contravention of the provisions of Notification 52/2003-Cus dated 31.03.2003 and Notification 22/2003 date 31.03.2003, we would like to observe that the foremost consequence of contravention of provisions of an exemption notification is denial of benefit thereof. We find that the adjudicating authority has allowed benefit of the said notification to the appellant. It means t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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