9911796707
TMI Blog2014 (5) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority has confirmed a duty demand of Rs. 9,61,703.42 against the appellant, M/s.Blue Star Ltd. and has imposed an equivalent amount of penalty under Rule 173Q apart from a penalty of Rs. 1.00 lakh on Shri H.M. Jhangiani, Executive Director of the appellant firm under Rule 209A of the erstwhile Central Excise Rules, 1944. 3. The learned Counsel for the appellant submits that they are not disputing the duty liability confirmed in the impugned order, which they have since paid. They are only disputing the penalties imposed on the appellant and its Executive Director. It is their contention that the appellants had been filing price lists based on provisional costs and the price lists were also approved provisionally. Subsequently on f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment, which are confirmed at the time of final assessment, there is no need to impose any fine or penalty. In the Kotak Mahindra Bank Ltd. case, it was held that if proceedings are initiated after the legal provisions were omitted or repealed, then such proceedings cannot be sustained. In the present case, penalty is sought to be imposed under the provisions of Rule 173Q read with Section 11AC of the Central Excise Act, 1944. Since Rule 173Q has been omitted/repealed, the question of imposition of penalty under a non-existent provision cannot be sustained in law. 4. The learned Additional Commissioner (AR) appearing for the Revenue on the other hand submits that there is no evidence led by the appellant to show that the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had not submitted the actual costs of material, labour costs, overheads, etc. during the adjudication proceedings which was done earlier. In the absence of actual data, it is not understandable how the department could have finalized the assessments. Therefore, there is a merit in the contention of the appellant that during the material period, the assessments were provisional. On the other hand, if the assessments had been finalized, a copy of the final assessment order would be available with the department for the impugned period. Since at the relevant time the assessments had to be done by the Range Officer. No such evidence is forthcoming from the Revenue in this regard. In the absence of any such evidence, the benefit of doubt has t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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