2011 (9) TMI 267

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....pplication for recalling the order dated 1.2.2010 passed by the Tribunal, learned Advocate submits that against Order-in-Appeal No. 101/CU/MRT/2009 dated 28.8.2009 both Revenue and the Assessee came in appeal. Revenue filed its appeal on 30.11.2009 and that was registered as Appeal case No. E/3217/09 in the Tribunal. Assessee filed its appeal on 3.12.2009 in the Tribunal and that was registered as....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....of Revenue reached for hearing before the Tribunal.  3. Shri Arora submitted that Assessee was prevent to appear due to sudden illness of its Counsel and no alternative arrangement to cause appearance before the Tribunal could be made on the date of hearing of Revenue's appeal on the date of hearing of Revenue's appeal. That has been explained by an affidavit. In absence of the Assessee on....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ther hand submits that whatever material was available on record at the relevant time that was relied upon for arguing the matter. When clandestine removal was proved there is no scope to grant any relief in penalty. 7. Heard both sides and perused the record. 8. The manner in which the matter reached to the Bench and concluded in absence of assessee, interest of the assessee has been prejud....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... without mentioning pendency of Assessee's appeal it cannot be said that the case of penalty was a case under Section 11AC of Central Excise Act, 1944. It is only a case under Rule 25 of Central Excise Rules, 2002. The Appellate Authority did not appreciate presence of element of Section 11AC in the case. Although there is a direction to the Adjudicating Authority in the remand proceedings to look....