2010 (10) TMI 885

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....ordingly, the same were confiscated and allowed to be redeemed on a redemption fine of Rs. 25,000/- and the penalty under Rule 25 of Central Excise Rules, 2002 was also imposed. On appeal before the Commissioner (Appeals), the Commissioner (Appeals) confirmed the confiscation but reduced the penalty to Rs. 10,000/-. Aggrieved from the reduction of penalty, Revenue has filed the appeal. Aggrieved from the confiscation and Imposition of penalty, the assessee also filed the appeal. 3. Shri Bipin Garg, learned Advocate appearing on behalf of the assessee submitted that during the course of physical verification of the stock, the assessee has explained that the goods found in excess were not entered in their daily stock account by mistake ....

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....gistered dealer, - (a)     removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules, or (b)     does not account for any excisable goods produced or manufactured or stored by him; or (c)     engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or (d)     Contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty. Then, all such goods shall be liable to confiscating and the producer or manufacturer or r....

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....d to mean that though the application of section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of section 11A. That is what Dharmendra Textile decides. 24. It must however, be made clear that what is stated above in regard to the decision in Dharmendra Textile is only in so far as section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it) with regard to the several other statutory provisions that came up for consideration in that decision." 8.&ems....