2007 (2) TMI 231

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....97 and eventually the Assistant Commissioner, Central Excise, Division-II, Bhopal came to hold that the seized goods were liable for confiscation. Because of the aforesaid conclusion and taking note of the fact that the goods have been provisionally released and not available for confiscation, Commissioner appropriated the bank guarantee furnished by the respondent at the time of provisional release of the goods. In addition, the Commissioner imposed a penalty of Rs. 50,000/- under Rule 173-Q of the Central Excise Rules, 1944. After imposition of penalty the respondent opted for K.V.S.S. Scheme and filed a declaration for the same, Annexure-E, on 28-12-1998. Under the said Scheme it paid Rs. 25,000/- to the Department. 2. After settlemen....

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....early covered since the appellant had opted for K.V.S.S. against the entire Order-in-original No. 115/MOD/AC/CEX/D-II/98 dated 14-9-1998 and this unilateral appropriation of BG/FDR by the department and not from the appellant side, is also obviously covered under the said scheme." 4. Quite apart from the above, the appellate authority also opined that there should not have been appropriation of the bank guarantee by the adjudicating authority more so, when there was an application for settlement under the K.V.S.S. The Commissioner (Appeals), being of this view, directed refund of Rs. 1 lakh by way of credit to the Cenvat account. 5. Revenue being grieved by the aforesaid knocked at the doors of the Customs, Excise & Service Tax Appell....

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....ed Order-in-Appeal and the appeal against which stood withdrawn." 7. At a first flush the aforesaid question appears to be substantial question of law but on a deeper scrutiny and keener scan it really does not tantamount to be so. It is noticeable that the Commissioner in its order has taken note of the fact and has expressed the view that the reasoning of the adjudicating authority that the order-in-original covers the field those arrears of revenue which are outstanding on the date of filing of declaration and not those already appropriated, for the respondent had opted for K.V.S.S. account, entire order-in-original was passed on 14-9-1998 and there has been a settlement under the K.V.S.S. Scheme. Submission of Mr. Namdeo the appeal a....