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TMI Blog2007 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were removed without payment of duty. He explained that they removed the goods without the cover of invoice as the accountant was absent. The Central Excise Officers seized the said goods. The appellant deposited the duty on 4-3- 2003. The adjudicating authority confiscated the seized goods and imposed redemption fine of Rs. 70,000/- and also confirmed the demand of duty, which has already been deposited by the appellant. He imposed penalty of equal amount of duty under Section 11AC of the Central Excise Act along with interest. The Commissioner (Appeals) modified the adjudication order insofar as the redemption fine was reduced to Rs. 40,000/-, otherwise the appeal was rejected. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (170) E.L.T 100 (T-D). (2) CCE v. Malbro Appliances Pvt. Ltd. - 2007 (208) E.L.T 503 (Delhi) (3) Sai Machine Tools Pvt. Ltd. v. CCE, Indore - 2006 (203) E.L.T 15 (M.P.) He further submits that in this case duty involved is Rs. 32,300/- and imposition of redemption fine of Rs. 40,000/- is highly excessive. He also submits that the appellants deposited the duty before issue of show cause notice and, therefore, redemption fine is liable to be set aside. 3. Ld. DR on behalf of the Revenue reiterates the findings of the Com missioner (Appeals). He submits that the charge of clandestine remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner (Appeals) that these records are only a consolidated entries in respect of each day. In the facts and circumstances of the case, it is clearly established that the appellants removed the goods clandestinely without payment of duty. The main contention of the Id. Advocate that the appellants paid the duty before issue of show cause HE notice, therefore, penalty under Section 11AC cannot be imposed. 5. I find that all the case laws cited by the id. Advocate are on particular context and there was no charge of clandestine removal. For the purpose of convenience, the said case laws are discussed herein below (I) In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed die judgment in the case of Rashtriya Ispat Nigam Ltd. reported in 2004 (163) E.L.T A-53 (S.C.)]. (III) In the case of Chel park Co. (P) Ltd. reported in 2007 (216) E.L.T. 364 (Kar.) = 2007 (83) R.L.T 9 (Karnataka), the respondent claimed duty ex emption on Synthetics Adhesives under the self removal procedure and did not discharge duty on the synthetic adhesives cleared without payment of duty and also did not pay 8% of the price of the exempted goods. (IV) In the case of M/s. Pack Point (supra), the assessee availed Cenvat credit on capital goods (machinery) before installation by filing wrong certificate. (V) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose and shall liable to pay penalty under Section 11AC of the Act even duty deposited before issue of show cause notice. It is seen that the Larger Bench of the Tribunal in the case of Ilpea para mountPvt. Ltd. (supra) expressed the same view of the decision of the Hon'ble Bombay High Court. At this stage, id. Advocate placed the decision of the Hon 'ble Rajasthan High Court in the case of CCE v. Banswara Syntex Ltd. reported in 2007 (212) E.L.T 171 (Rajasthan), in which it is held that the imposition of penalty under Section 11AC of the Central Excise Act as well as Rule 173Q of the erstwhile Rules provide levy of maximum of penalty only, using the discretion of the authority. The relevant portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in reducing the penalty when it found that levy of maxi mum penalty was not justified." 7. Ld. Advocate submits that in the present case the assessee is within the jurisdiction of the Hon'ble High Court of Rajasthan and therefore, the decision of the Banswara Syntex Ltd. (supra) is applicable. In support of his contention, he placed the decision of Larger Bench of the Tribunal in the case of Collector of Central Excise v. Kashmir Conductors - 1997 (96) E.L.T. 257 (Tribunal). In para 10.2 of the said decision, it has been held that where the jurisdictional High Court has taken a particular view on interpretation or proposition of law, that view has to be followe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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