TMI Blog2011 (8) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the same is contrary to the decision of the Supreme Court - appeal allowed - decided in favor of appellant. - C.S.T.A. No. 1 of 2004 - - - Dated:- 25-8-2011 - V.G. Sabhahit and B. Manohar, JJ. Shri S.S. Bheemaraddi, Advocate, for the Appellant. Shri K.S. Ravishankar, Advocate, for the Respondent. JUDGMENT [Judgment per : V.G. Sabhahit, J.]. - This appeal is filed by the Revenue being aggrieved by the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (hereinafter called as CESTAT) in Appeal No. 197/2004, dated 27-7-2004 [2004 (177) E.L.T. 937 (Tri.-Bang.)] wherein the Tribunal having confirmed the confiscation, has set aside the order of penalty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The material facts necessary for answering the above substantial questions of law, the substance pertains to the question of law is, as to whether the finding of the Tribunal on the facts and circumstances of the case, that no penalty can be imposed, as the duty has been paid before issuance of show cause notice, is justified or contrary to law, are as follows : The assessee have a public bonded warehouse in their premises operated by Central Warehousing Corporation where machinery and spares imported are warehoused pending clearance. On receiving credible information of intelligence of irregularities, officers of DRI Bangalore visited their premises, took stock of material in the warehouse, verified all the records of import under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear and categorical admission of the allegations and by order dated 5/7-5-1999 confirmed the order of confiscation. Appeal was filed before the Commissioner of Customs, Mangalore and the appeal was disposed of wherein the assessee failed and thereafter appeal was filed before the Tribunal in Appeal No. 197/2004. The Tribunal by order dated 23-2-2002 remanded the matter for de novo adjudication with certain directions. Against the said order of the Tribunal and Order-in-Original No. 1/2001, dated 3-3-2001 the assessee approached this Court in W.P. No. 22391-22392/2002. This Court by order dated 18-2-2003 has set aside the Order No. 1/2001, dated 30-3-2001 of the Adjudicating Authority, and Order No. 419/2002, dated 23-3-2002 of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. We have heard the learned counsel appearing for Revenue. 4. Learned counsel appearing for the appellants submitted that in the judgment of the Hon ble Supreme Court in the case of Union of India and Others v. Dharamendra Textile Processors and Others reported in (2008) 306 ITR 277 (SC) = 2008 (231) E.L.T. 3 (S.C.); and in the case of Union of India v. Rajasthan Spinning and Weaving Mills reported in (2009) 13 Supreme Court Cases 448 = 2009 (238) E.L.T. 3 (S.C.). it was held that mere fact that assessee who deposited duty before issuance of show cause notice would not absolve the assessee of paying penalty and interest. Therefore order of the Tribunal is liable to be set aside by answering the substantial question of law in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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