TaxTMI 
TaxTMI 
2006 (3) TMI 137
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....he appeal without assigning any reason, merely by stating that since the Commissioner (Appeals) has already granted substantial relief, further reduction or setting aside of the penalty is not called for? 3. Admit. 4. Mr. P. S.Jetley, Advocate wavies service for the revenue. 5. The appeal is heard finally at this stage. 6. In challenging the order passed by the Commissioner (Appeals), the present appellant set up the following grounds in the memo of appeal before the Tribunal:- "9.1 Commissioner (Appeals) has erred in confiscating the goods under Rule 173Q(1) of the Central Excise Rules, 1944, without specifying that as to which sub-clause of Rule 173Q(1) was being sought to be invoked against the appellant. Appellant s....
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....ise Rules, 1944 could not be invoked until and unless it was established there was an intention to evade payment of duty on the part of the appellant. Appellant submits that there could not be any intention to evade payment of duty on its part inasmuch as the goods which have not been entered in the RG 1 register had been manufactured as per specification of the buyers whose names were mentioned on the packing slip which was seized along with the finished goods. This packing slip mentioned in name of the buyer, weight of the material, batch No. of the foil, size of the foil, etc., which tallied with the purchase orders placed by the clients. The purchase order also clearly mentioned excise would be reimbursed to the appellant on actua....
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....vide that penalty and the fine under rule 173Q(1)(b) cannot be imposed until and unless there is mens rea on the part of such manufacturer and that the expression "account for" appearing in clause (b) of sub-rule 1 of Rule 173Q meant, to explain 'presence of' and was not synonymous entry in the RG 1 register. Appellant submits that Commissioner (Appeals) has for reasons best known to him preferred to rely upon and take cognizance of the decision of single member, which neither takes into account the other binding decisions of the Division Bench nor does it discuss the applicability or otherwise of Rule 173Q, appellant therefore submits that the impugned order, which has been passed by placing reliance on a decision, which is not only per in....
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....ufactured as per the specifications placed by the buyers and that such finished goods were custom made for each of its buyers who had placed upon the appellant purchase orders for the said goods, which contained the condition regarding reimbursement of excise duty on actuals. Appellant submits that even though it produced evidence in the form of purchase orders/contract as well as the packing list which were seized during the course of investigation, which clearly establish that the finished goods which were seized were meant for aforesaid buyers and the there could be no intention for evading payment of duty in respect of the said goods, Commissioner (Appeals) has without considering the said submissions held the goods liable to confiscati....
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....ppellant primarily under section 11AC. 9.6 Without prejudice to the above, Commissioner (Appeals) has erred in imposing penalty under Rule 173Q without specifying as to which of the sub-clauses of sub rule 1 of rule 173Q were infringed by the appellant. Appellant submits that it is well settled law that penalty under Rule 173Q(1) cannot be imposed without specifying as to which specific clause of the said sub-rule was infringed by the assessee. Appellant submits that the impugned order being silent on the said issue, it cannot be sustained and deserves to be quashed and set aside on this ground alone. 9.7 Commissioner (Appeals) has erred in holding that there was shortage of inputs to the extend of 955.70 kegs inasmuch as appellant ha....
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....t prejudice to the above, Commissioner (Appeals) has also failed to appreciate that the order for reversal of credit and penalty, under rule 571 as well as for imposition of fine under Rule 173Q of the erstwhile central excise rules is not sustainable inasmuch as the said rules have been substituted by cenvat provisions in terms of Notification 27/2000 CE NT dated 31.3.2000 and that under the new rules, there is saving clause for acts, omissions committed under the erstwhile rules. Appellant submits that in the absence of there being any saving clause, there cannot be any demand of modvat credit or imposition of penalty under the erstwhile rules 571 which was the only provision prevailing at the relevant time for denying credit and imposing....