TaxTMI 
TaxTMI 
2011 (7) TMI 915
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....Rule 173Q(1) on the ground that they had contravened certain provisions of the Central Excise Rules, 1944. This order was passed by the original authority on 25.6.2002. The second order-in-original was passed by the same authority on 30.7.2002 sanctioning a rebate of duty of Rs.26,15,445/- and recovering the aforesaid penalty amount by deducting the same from the amount of rebate sanctioned. Both the orders were taken in appeal to the Commissioner (Appeals) and the appellate authority passed the impugned order. 2. After examining the records and hearing both sides, we note that the lower appellate authority upheld the first order-in-original with the modification that the amount of penalty should be limited to Rs.10 lakhs. The appe....
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....ant under Rule 173Q(1) of the Central Excise Rules. Per contra, the learned SDR submits that, in the aforesaid circumstances, the appellant ought to have resorted to provisional assessment under Rule 9B of the Central Excise Rules. They neither applied for the proper officer's permission for provisional assessment nor resorted to self-assessment as envisaged under the second proviso to sub-rule (1) of Rule 9B as the Rule stood during the material period. It is submitted that, in such a situation, it cannot be said that the assessee resorted to provisional assessment under Rule 9B. What they chose to do was to self-assess the goods without reference to the proper officer of Central Excise by determining the assessable value incorrectly and s....
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....t the differential amount of duty was paid by the assessee after a visit of preventive officers of the department to the factory. It is not in dispute that, at the time of clearance of the goods, duty was short-paid on account of incorrect determination of assessable value. There is nothing on record to indicate that the assessee took any steps under Rule 9B for provisional assessment. In a case where any of the ingredients of the assessable value was not known and would be available only at a later point of time, the above Rule provided for provisional assessment. The manufacturer could either take prior permission from the proper officer of Central Excise for provisional assessment under bond or other conditions or could resort to s....
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....) were not applicable to this case. Removal of any excisable goods in contravention of any of the provisions of the Central Excise Rules attracted penalty under clause (a) while contravention of any of the provisions of the Central Excise Rules with intent to evade payment of duty attracted penalty under clause (d). As rightly pointed out by the learned counsel, the show-cause notice did not allege that the assessee had contravened any Rule with intent to evade payment of duty. The original authority also did not record any finding to the effect that the assessee had contravened any Rule with intent to evade payment of duty. The finding recorded by the learned Commissioner (Appeals) to the effect that the assessee had contravened the provis....
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..... Before parting with this area, we have also to consider the case law cited by the learned counsel. The learned counsel submitted that, as the show-cause notice did not specify any of the clauses of sub-rule (1) of Rule 173Q, no penalty was liable to be imposed on the assessee at all. On a perusal of the show-cause notice and the annexures thereto, we have found that the show-cause notice clearly alleged that the assessee contravened the provisions of Section 4 of the Central Excise Act and Rules 173C and 173F read with Rule 6(b)(ii) of the Central Excise Valuation Rules inasmuch as 'they had cleared their goods at incorrect, wrong and lower assessable value thereby paying less duty than what was due to the department for the period ....