GUIDE VALVE INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) IN this appeal, filed by M/s. Guide Valve Industries, the issue involved is whether penalty under Rule 209A of the Central Excise Rules, 1944 is imposable on them.

(2.) THE Appellants under their letter dated 17 -3 -2003 have requested to set aside the penalty and allow their appeal on merits after considering the sub -missions made therein. We, therefore, heard Shri R.C. Sankhla, learned SDR for the Revenue and perused the submissions made by the Appellants. They have mentioned that they are engaged in the manufacture of Valve and Cocks; that on 8 -10 -97 Central Excise Officers visited their factory premises for verification of raw material received by them from M/s. Aggarwal Metal Co. under invoice No. 235, dated 6 -10 -97; that the officers seized Copper Alloy Ingots valued at Rs. 1,04,849/ - received under the said invoice on the ground that the goods were manufactured by M/s. Harsh Metal Co. and had been cleared without payment of duty; that two Show Cause Notices had been received by them proposing penal action under Rule 209A of the Central Excise Rules; that one Show Cause Notice was for confiscation of the seized goods and the other for demanding duty on clearances made by M/s. Harsh Metal Co. to their buyers without payment of duty; that in respect of first Show Cause Notice a penalty of Rs. 1 lakh under Rule 209A has been imposed on the Appellants besides confiscation of the seized goods under Order -in -Original No. 14/CE/ABC/2000, dated 30 -3 -2000 passed by the Additional Commissioner; that under the impugned Order the Commis -sioner has imposed a penalty of Rs. 10,000/ - again under Rule 209A in respect of the same transaction and on the basis of the same facts. They have, further, submitted that the Commissioner have failed to appreciate that the penalty for the same facts cannot be imposed second time; that this has resulted in double jeopardy and the impugned Order is liable to be set aside on this count alone. Finally he submitted that even on merits ingredients of Rule 209A are not satisfied as there is nothing on record to prove that they have reason to believe that the goods are liable to confiscation and accordingly no penalty under Rule 209A can be imposed on them.

(3.) THE learned SDR on the other hand has submitted that the first Show Cause Notice was for the seizure of the goods and as the goods were found in their possession penalty was imposed; that in the second Show Cause Notice demand of duty has been confirmed against M/s. Harsh Metal Co. and penalty has been imposed on the Appellants for receiving the excisable goods cleared without payment of duty.