2005 (7) TMI 130

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....lication for condonation of delay was dismissed by order dated 30-10-2002. Commissioner moved the Bombay High Court in W.P. No. 5689/03 & the Hon'ble Court vide order dated 24-9-2004 set aside the order dated 30-10-2002 of this Tribunal and ordered - "We heard the learned senior counsel for the revenue and the learned counsel for the respondents. Rule. Returnable forthwith. The writ petition is located on Board for final hearing. By consent, the impugned order dated 2-11-2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai, is set aside. The delay in making application by the revenue under section 35A(4) stands condoned. The Tribunal shall now hear the said application made by the revenue under section 3....

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.... be retrospective from the date it was issued i.e. 26-9-1996 & mandatory penalty need not be called for since Commissioner has found in para 15 of the order - "15........ I find that there is a short levy which occurred due to partly suppression of relevant facts and partly in ignorance of the correct Rules to be made applicable in this regard in view of the fact that such clearances are being assessed for the first time in the case of the assessee and there was an element of ignorance and lack of proper guidance by the departmental officers it is not proposed to penalize the assessee".......... Therefore it can be held that the conduct of the assessee, the officers and the first attempt at interpretation were the reasons arrived at f....

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....& imposed a penalty under Rule 209(1) read with Rule 173Q(1) of the Central Excise Rule, 1944 or under Rule 25(1) of the Central Excise Rules, 2001/2002 as the case may be. Hence this appeal & stay. (f)         After hearing both sides waiver of pre-deposit, we proceed to decide this appeal also as we find - (i)         Imposition of penalty under Rule 173Q is totally illegal since Chapter VIIA provision do not apply to EOU under the Central Excise Rules, 1944 due to Rule 173A(2). Proviso to Rule 11A(1) was not invoked in this notices for the reasons as arrived by the Commissioner in this order dated 31-12-1998 & upheld by us penalty is not called for & is....