TMI Blog2008 (4) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... J) and P. Karthikeyan, Member (T) Shri M.N. Bharathi, Advocate, for the Appellant. Shri T.C. Rajadas, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - The captioned appeals are filed against an order of the Commissioner (Appeals). In the impugned order, the Commissioner (Appeals) confirmed the demand of duty denying the benefit of SSI exemption to the assessee. He allowed relief in terms of Section 4(4)(d)(ii) of the erstwhile Central Excise Act, 1944 considering the total realization for the clandestine clearances found against the assessee as cum-duty value. He modified penalty on the appellant-firm from Rs. 3 lakhs to Rs. 75,000/-. He vacated penalty of Rs. 50,000/- imposed under Rule 209A of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible for the SSI exemption. 5. Ld. Counsel for the assessee submits that the Show Cause Notice basic to the impugned order issued on 26-10-98 to recover the SSI benefits availed by the assessee was time barred. On 22-1-1997 when the Range Superintendent issued the 57E Certificate, the Department became aware that the assessee was availing the SSI exemption. Therefore, the Show Cause Notice dated 26-10-98 to deny SSI benefit availed in the year 1996-97 was barred by limitation. It is also submitted that Shri N. Ramachandran who was in no way connected with the assessee firm was penalized under Rule 209A of the erstwhile Central Excise Rules, 1944 without any justification. The Counsel prays that the impugned order may be set aside. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and paid. On 16-1-1997, the assessee paid the short-paid amount with reference to its liability under the SSI exemption. The Range Officer certified the duty payment and obviously accepted the total amount paid for the relevant period as correct. This payment was in terms of the SSI Notification. Therefore, if the assessee believed that it was paying duty in accordance with law it cannot be penalized on a subsequent finding that the duty payment was not in accordance with law. It is settled that penalty cannot be imposed just for the reason that the statute provides for it. It has to be established that the assessee was acting in defiance of law and its conduct was dishonest and contumacious. In the instant case the assessee's conduct has t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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