A.K. CONSTRUCTION Vs. CESTAT

JUDGEMENT

(1.) Heard Ms. Akshada Thakre, Learned Counsel with Shri S.V. Purohit, Learned Counsel for appellant and Shri S.K. Mishra, learned A.S.G.I. for respondent No. 2. Looking to the nature of the controversy involved in the matter, service upon respondent No. 1 is dispensed with. Admit. Taken up for final hearing by consent.

(2.) Substantial question involved in this appeal is - Whether an order of penalty could have been passed against the appellant without setting aside the finding of absence of intention, recorded by the Assistant Commissioner of Central Excise in Paragraph No. 3.5 of the order-in-original

(3.) Ms. Thakre, Learned Counsel points out that the said order was questioned before the Commissioner of Appeals and that Authority has decided the appeal on 10-11-2009 and rejected it. However, the finding of absence of intention or its impact has not been gone into. A further appeal under Section 86 of the Finance Act to Custom Excise and Service Tax Appellate Tribunal (CESTAT) has then been decided on 25-1-2011. Though this aspect was pointed out, the CESTAT has only reduced the quantum of penalty from Rs. 200/- per day to Rs. 100/- per day.