TMI Blog2001 (8) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Rs. 3 lakhs in their PLA on, 24-5-1996 and took re-credit of equal amount in their RG 23A Pt. II on 27-5-1996. Show cause notice (SCN) dated 29-8-1996 was issued to them by the Department for disallowing the Modvat credit so taken and for imposing penalty on them. It was contested by the party. The adjudicating authority confirmed the demand of duty under Rule 57-I of the Central Excise Rules and imposed on the appellants a penalty of Rs. 30,000/- under Rule 173Q. A second SCN dated 20-4-1998 was also issued by the Department proposing to confirm the PLA debit of 24-5-1996 under Section 11A of the Central Excise Act and impose penalties on the appellants under Section 11AC of the Act and Rule 173Q of the Central Excise Rules. This SCN w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 173Q without specifying the separate amounts under the two provisions. Counsel argues that such penalty cannot be sustained in view of the Tribunal's decision in Lauls Limited v. CCE, New Delhi [1999 (33) RLT 523 (CEGAT)]. As regards the penalty imposed under Rule 173Q, ld. Counsel submits that the same was imposed by the original authority on the basis of a finding that the appellants had contravened legal provisions. The lower appellate authority upheld the penalty after attributing wilful act to the appellants in the matter of making debit and credit entries in the RG 23A Pt. II and after observing that there was no bona fide clerical error on their part. Ld. Counsel submits that, even prior to issuance of the SCNs, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 173Q. It is not ascertainable as to what quantum of penalty has been imposed under Section 11AC and what quantum under Rule 173Q. In view of the decision of the Tribunal in Lauls Limited (supra), the consolidated penalty under two different penal provisions cannot be sustained in the present case. 6. As regards the penalty of Rs. 30,000/- imposed under Rule 173Q, I observe that it is evident from the letter dated 22-06-1996 submitted by the appellants to the Range Superintendent that they were aware of the procedure but did not follow the same. When one omits to follow a procedure which one is aware of, it is a wilful omission. Therefore, the finding of fact to the effect that the appellants wilfully omitted to follow the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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