9911796707
TMI Blog2007 (7) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of a fine of Rs. 1000/-. The Commissioner also imposed penalty equal to duty on the assessee under Section 11AC of the Central Excise Act and Rules 9(2), 173Q and 226 of the Central Excise Rules. The assessee's appeal is against the above order of the Commissioner. The contention of the Revenue, raised in Appeal No. E/263/01, is that the adjudicating authority erred in granting the benefit of Section 4(4)(d)(ii) of the Central Excise Act to the assessee while computing the demand of duty. 2. After examining the records and hearing both sides, we note that the assessee never questioned excisability of the goods before the lower authority. In the present appeal, however, they have made a feeble claim that the subject commodity w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears that the appellants admitted that they had collected additional amounts from their buyers and had not paid duty thereon. They also admitted diversion of raw materials without payment of duty. The assessee claimed before the adjudicating authority the benefit of Section 4(4)(d) (ii) of the Act in respect of the cables (seconds). They themselves worked out the deductions and submitted a worksheet to the Commissioner covering the period of dispute. This worksheet mentioned a total amount of duty of Rs. 9,00,760.63 as payable by the assessee. Ld. Commissioner accepted this worksheet after holding that the assessee was eligible for the benefit of Section 4(4)(d)(ii). However, his order demanded a higher amount of duty from the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that ld. Commissioner imposed a penalty equal to duty on the assessee without having regard to the fact that Section 11AC was not in force during a major part of the period of dispute. Again, as rightly pointed out by ld. Counsel, a composite penalty was imposed under different penal provisions which worked on different principles. Considerations relevant to imposition of penalty under Section 11AC are different from those relevant to imposition of one under Rule 173Q. Ld. Commissioner lost sight of this distinction. This error also can be corrected by him. Therefore, we allow the assessee's appeal by way of remand for the limited purpose of re-quantification of the demand of duty on the basis of the assessee's worksheet and fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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