2008 (9) TMI 146

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....ector saying that the consolidated/ composite penalty is not legally permissible when wrong mention of Section or Rules does not vitiate the demand and when Order-in-Original invoked Section 112(b) of Customs Act, 1962 and Rule 209A of Central Excise Rules, 1944?" 2. The brief facts giving rise to the present tax Appeal are that M/s. Kansal Tex-O-Tube Pvt. Ltd. is a 100% EOU. It is engaged in the manufacture of yarn falling under Chapter 54 of the Central Excise Tariff Act, 1985. The officers of the Director General of Anti Evasion searched the premises of the said unit on 30.11.1999 and ascertained the physical stock of raw materials and finished goods. The premises of M/s. Jay Krishna Sizers was also searched and 1800 Kgs. of imported ....

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....of the said appeals, the Tribunal has observed that 100% EOU imported PFY without payment of duty. The Tribunal has also upheld confiscation and duty demand. The Tribunal has, however, set aside the penalty as unsustainable for the reason that it is a consolidated/composite penalty imposed under Sec.112(b) of the Customs Act and Rule 209A of the Central Excise Rules, which is not legally permissible. 6. It is this order of the Tribunal which is under challenge in the present Tax Appeal. 7. Mr. Y. N. Ravani, learned Standing Counsel for the Department, has submitted that the order passed by the Tribunal is erroneous, improper, invalid, bad in law and is contrary to the provisions of the Customs Act and the Central Excise Rules, 1944. H....

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....nsel appearing for the parties and having gone through the order of the authorities below, we are of the view that the Tribunal has taken the correct view in holding that composite/consolidated penalty is not leviable under Sec. 112(b) of the Customs Act as well as under Rule 209A of the Central Excise Rules. Our attention is drawn to the decision of the Bombay Tribunal in the case of Kamlesh Kumar Goel v. Commissioner of Central Excise, Thane-II, 2008 (223) E.L.T. 65 (Tri.-Mumbai), wherein, while upholding the stand of the assessee, it held that the imposition of composite penalty under Sec. 11AC, Rule 173Q(1) and Rule 25 of Central Excise Rules is not permissible. The Tribunal has also referred to earlier two decisions in the case of Punj....