2004 (3) TMI 137

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....ran, Member (J) (Oral)]. - The party's appeal and the Revenue's appeal are taken up for decision on merits. Both the appeals arise from Order-in-Appeal No. 1/2002, dated 17-1-2002 passed by the Commissioner of Central Excise, Hyderabad. The order-in-adjudication has dropped the demands made in the Show Cause Notice. However, the Additional Commissioner imposed penalty of Rs. 10,000/- under Rule 20....

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....t of the Apex Court judgment rendered in the case of CCE v. HMM Limited reported in 1995 (76) E.L.T. 497 (S.C.) on the principle that 'Penalty is not imposable unless Department is able to sustain its demands in terms of the Show Cause Notice'. The Apex Court judgment referred to, pertains to imposition of penalties under Rules 9(2) and 173Q. However, the penalty imposed by the Additional Commissi....

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....ed v. CCE reported in 2003 (155) E.L.T. 188 (Tri. - LB) has laid down that the amount deposited during investigation is payable to the assessee along with interest from the expiry of three months from the date of application for refund till date of payment at the rate specified. He further submits that the Tribunal in the case of Suri Industries Limited v. CCE, reported in 2001 (132) E.L.T. 480 (T....

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....ed by them are eligible for refund in terms of Larger Bench judgment cited by them and the Tribunal in the case of Suri Industries. Therefore, the appellant's appeal is allowed with consequential relief. 3. In so far as the Revenue appeal is concerned, it is seen that the Commissioner dropped the penal proceedings on the ground that penalty is not imposable as duty was not confirmed, in the lig....