TMI Blog2008 (3) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty was not justified - Delay in filing appeal because of negligence of the lawyer - it will not be fair to dismiss the appeal at the threshold on the ground of limitation – delay condoned - E/262/2008 - 131/2008-EX(PB), - Dated:- 28-3-2008 - Justice S.N. Jha, President and Shri M. Veeraiyan, Member (T) Shri E. Heraz Zafar, Advocate, for the Appellant. Shri A.N. Sharma, Jt. CDR, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On remand, the Commissioner (Appeals) vide Order-in-Appeal dated 21-12-2006 upheld the confiscation of the seized goods and confirmed the demand of duty of Rs. 1,13,640/- He however, reduced the penalty from Rs. 2,24,000/- to Rs. 1 lakh. It is stated on behalf of the appellant that they have paid the entire duty as aforesaid and there is no dispute in this regard. 3. Adverting to the narrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned. The case of the appellant is that the previous advocate engaged by the appellant did not pursue the appeal, he did not take any steps to rectify the defects on time and on account of the acts of omission and negligence on his part, he was removed and appeal was filed through another advocate. 5. We find that in terms of latter part of sub-rule (4) of Rule 11 of the CESTAT (Procedure) Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability to pay duty on the goods. The case of the appellant is that the goods namely, wooden crates were manufactured for home consumption and they bona fide believed that the activities did not amount to manufacture so as to make the goods exigible to levy of excise duty. The entire duty has since been paid. As there was no intention to evade duty, in the absence of any allegation as to fraud etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intention on the part of the appellant, which is a Government undertaking, to evade duty or fraud, collusion, etc., imposition of penalty was not justified. We accordingly, set aside that part of the order of Commissioner by which the penalty of Rs. 1 lakh has been imposed. 9. Subject to above modification in the order of the Commissioner (Appeals), the appeal is dismissed. (Dictated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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