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2016 (8) TMI 1103 - CESTAT MUMBAI

2016 (8) TMI 1103 - CESTAT MUMBAI - TMI - Liability of interest and penalty - Suo moto abatement - regularized by the Commissioner though at later stage but the grant of abatement should be considered deemed to have been granted when the appellant has suo moto taken the abatement - Held that:- the appellant had taken the suo moto abatement by paying less duty to that extent towards the closure of the factory from 15.7.1999 to 23.7.1999 but for the same period the Commissioner vide order had allo .....

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ur of assessee - E/1433/2010 - A/88797/16/SMB - Dated:- 26-7-2016 - Shri Ramesh Nair, Member (Judicial) Ms. Mansi Patil, Advocate for Appellant Shri Sanjay Hasija, Supdt. (A.R) for respondent ORDER The appeal is directed against Order-in-Appeal No. SB(53)53/MV/2010 dt. 20.05.2010 passed by the Commissioner (Appeals) Central Excise, Mumbai-I. 2. The fact of the case is that the appellant are engaged in the processing of Cotton Fabrics and Man Made Fabrics and Grey Fabrics on job work basis for wh .....

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ht to have paid the duty demanded from month to month during the relevant period. On the appeal filed by the appellant before the Commissioner (Appeals) the Commissioner (Appeals) vide order dt. 23.7.2001 set aside the Order-in-Original. There were two issues involved in the said case, first, whether the galleries were to be included in the measurements of the stenters. On this issue, the Revenue failed and the CESTAT also upheld the order of Commissioner (Appeals), on this count. The second iss .....

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or the period outstanding i.e. from date of payment due and actual date of abatement granted by the Commissioner. Penalty of ₹ 1,45,645/- imposed by the adjudicating authority was upheld, a demand of ₹ 4,355/- short paid by the appellant along with interest and penalty of ₹ 4,355/- was also imposed. Being aggrieved by the impugned order the appellant is before me. 3. Ms. Mansi Patil, Ld. Advocate for the appellant submits that the suo moto abatement taken by the appellant has b .....

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Commissioner of C. Ex. Mumbai-IV 2001 (136) E.L.T. 639 (Tri.-Mumbai). She further submits that the interest and penalty is otherwise not chargeable in the light of the decision of the various High Courts. the provisions of compounded levy itself have been held ultra vires. In this regard, she placed reliance on the following judgements: (i) Beauty Dyers 2002 (52) RLT 636 (Mad.) (ii) Order Dt. 18.7.2008 in Writ Petition No. 2366 to 2369/2002 (iii) Supreme Court judgment in the case of Union of In .....

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en suo moto abatement therefore the same is not permissible. The abatement has to be considered from the date when the Commissioner, by an order allowed the abatement therefore the interest and penalty is correctly imposable on the appellant. He placed reliance on the following judgements: (i) Krishna Processors Vs. Union of India 2012 (280) E.L.T. 186 (Guj.) (ii) Commissioner of Cus. & Central Excise Vs. Webbing & Belting Pvt. Ltd. 2013 (290) E.L.T. 508 (All.) (iii) Commissioner of Cust .....

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