2007 (10) TMI 24

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....antity, 7500 kgs. were found loaded in the tempo, which was intercepted on the way to be delivered to one M/s. Arafat Yarn Corporation. On the basis of the above seizer and the statement made by the Driver, officers came to the factory of M/s. Shabnam Synthetics, Revenue recorded the statements of various authorized representatives and found that the balance 7500 kgs of imported polyester yarn was also sold by the appellant against cash in the open market. 3. On the basis of the above, proceedings were initiated against the appellant, which culminated into an order passed by Jt. Commissioner confirming demand of duty of Rs. 5,00,225/- and imposing personal penalty of identical amount on the said appellant in terms of the provisions of Se....

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....ny case, it is submitted that the penalty amount being equal to 25% of the duty, the appeal filed by the Revenue for enhancement of penalty is liable to be set aside inasmuch as the entire duty was paid well before the issuance of the show cause notice as held by the Hon'ble Delhi High Court in the case of CCE v. Malbro Appliances Pvt. Ltd., 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Mad.) = 2007 (79) RLT 109 (Del.), penalty of 25% is justified in these circumstances. 5. As regards the appellant's prayer for setting aside the personal penalty on the short ground that the same stands imposed under provisions of Section 114A, whereas the correct Section was Section 112. I find that in the impugned order Section 114A stands quoted ....

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.... further find that in the case of M/s. Asian Alloys Limited v. CCE, Delhi-III [2006 (203) E.L.T. 252 (Fri.- Del.)], it was observed that wrong mention of the relevant provision for imposition of penalty is of no consequence, when the entire allegations are made clear in the show cause notice and the assessee also understood the same in that mariner. For better understanding, I reproduce the relevant part of Para- 15 of the said decision : "It is obvious to us on reading the reply to the show cause notice as well as the impugned order that, the ingredients attracting confiscation and penalty were specifically alleged and clearly understood by the noticee and appropriately dealt with by the Commissioner. In this background mere wrong menti....