2009 (11) TMI 704

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....e Respondent. ORDER The short question arising for consideration in this case is whether any penalty is liable to be imposed on the appellant under Rule 25 read with Section 11AC of the Central Excise Act. 2. After examining the records, I find that this question can be considered without reference of the nature of the duty liability of the appellant. Admittedly, the appellant was liable ....

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....mmissioner (Appeals), who held that clause (a) of Rule 25 was attracted in the case inasmuch as the assessee had removed the goods in contravention of rules. 3. In the present appeal filed by the assessee, it is submitted that the penalty imposed under Rule 25 is arbitrary and unsustainable in law and that the said provision cannot be invoked in the absence of mens rea. It is also submitted tha....

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....rein it was held that no penalty was imposable under Rule 25, where the show-cause notice did not clearly specify the relevant clause of the rule. It is pointed out that the said decision of the Tribunal was affirmed by the Hon'ble High Court of Bombay by rejecting the department's appeal vide Commissioner of Central Excise, Daman v. Al-Amin Exports - 2008 (232) E.L.T. A197 (Bom.). Counsel has als....

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....areful consideration to the submissions, I find that the binding case law is to the effect that, where a provision is sought to be invoked against the assessee or other person by the department, the latter should allege the requisite facts in the show-cause notice. Thus, where Rule 25 is sought to be invoked, the department should necessarily allege the fact required for invoking the provision. Fo....