CCE Vs. INDUSTRIAL ENTERPRISES

JUDGEMENT

(1.) THIS is an appeal by the Revenue against order -in -appeal No. 124 -CE/APPL/KNP/99 dated 28/03/07 passed by CCE (Appeals), Kanpur, by which the Commissioner (Appeals), while upholding the duty demand against the Respondent set aside the imposition of penalty on them under Section 11AC. The Respondent is manufacturer of Aluminium Pipes. In the course of inquiry made by the Jurisdictional Central Excise Officers against the Respondent, it was found that they had removed clandestinely 520 pieces of Aluminium Pipes without payment of duty. The Respondent had paid the duty prior to the issue of show cause notice. A show cause notice dated 16/6/06 was issued to them for confirming the duty demand, appropriation of the amount towards the duty and imposition of penalty on them under Section 11AC. The Deputy Commissioner, vide order -in -original dated 30/09/06 besides confirming the duty demand alongwith interest, imposed penalty equal to the duty evaded under Section 11AC on the Appellant. On appeal against the Deputy Commissioner's order, the Commissioner (Appeals) while upholding the duty demand alongwith interest, set aside the imposition of penalty on them under Section 11AC on the ground that the entire duty alongwith interest had been paid prior to the issue of show cause notice. The Commissioner (Appeals) in this regard relied upon the Tribunal judgments in the case of

(2.) NONE appeared for the Respondent. Heard the learned Departmental Representative who pleaded that the judgments of the Tribunal in the case of Machino Montell (I) Limited (supra) and other judgments relied upon are no longer a good law as the Tribunal's judgment in the case of Machino Montell (I) Ltd. has been reversed by Hon'ble Punjab & Haryana High Court vide judgment reported in . He also pleaded that there is clear finding in the Assistant Commissioner's order that the Respondent had clandestinely removed 520 pieces of Aluminium Pipes without payment of duty, and in view of this, the provisions of Section 11AC warranting imposition of Section 11AC was attracted.