1987 (1) TMI 272

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....stant Collector was justified in imposing a penalty under Rule 9(2) and demanding duty on molasses in question on the effective rate. 2.  At this stage a question arose that as the penalty is only Rs. 2000/- whether the case was fit for admission as appeal. 3.  Shri Bajoria, the learned Advocate, submits that in this case no duty was demanded under the show-cause notice and a penalty was sought to be imposed with reference to Rules 9(2) and 173Q. The Collector (Appeals) has observed that there is no demand. Originally, the show-cause notice issued does not constitute any demand. He has, further, observed that the original order was passed under Rule 9 whereas there was no allegation of removal of molasses. Therefore, the ord....

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....he Collector (Appeals) and the amount of penalty involved is only Rs. 2000/- and the duty has not been quantified at any stage and the Collector (Appeals) has disposed of the matter by saying that there was no demand in existence, as the show-cause notice as worded does not constitute any demand. It was his contention that the quantity of amount of duty involved could be quantified as the quantity of molasses involved was known and was mentioned in the show-cause notice. 6.  Shri Bajoria submits that even in the show cause notice there is no reference of removal of the molasses and it merely says that the molasses ,was deposited in the kachha pits and there is no reference to any demand of duty at all. Whereas Rule 9(2) mentions it ....

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..... Further the Show-cause notice and the Order-in-Original refer to Rule 9, but there is no evidence of unauthorised or clandestine removal of materials from the approved premises. Hence, a penalty under Rule 9(2) or 173Q cannot be imposed. The Collector (Appeals) has, therefore, rightly held the order of the Asst. Collector as bad in law. 10.  The department's appeal has indeed no merit. 11.  I also observe that the appellant (Executive Collector) has used improper language while submitting this appeal. It is entirely wrong on the part of the appellant (Executive Collector) to say, "that the Collector (Appeals) has twisted the facts in favour of the assessee in order to find fault in the order of the Asst. Collector and pass....