Cpl Ac Written Penalty 12-1-96

V inay Kumar Shr af f FCA, AICWA, ACS, DISA(ICAI), Adv. Dip. in Mgt. Acctg. (CIMA- London) 52 Weston Street 5th Floor KOLKATA – 700 012 PHONE: 22259194 (O), 98300 61359 (M) e-mail: [email protected]

Assisstant Commissioner of Central Excise Howrah West Division, 25, Princep Street, Kolkata – 72

January 12, 2006

Dear Sir, Sub: Submissions with respect to Show cause –cum-Demand Notice No. CE 20/5/ Creative/SCDN/RVIII/ HWD/2002/27 dated 25-1-2002 Further to the reply submitted by my client Creative Polypack Ltd. in response to the show cause notice, I submit as follows: For that the learned Superintendent, Range VIII, HWD has failed to appreciate the fact that there was no intention to evade payment of duty as variance in the quantity dispatched by assessee and excess quantity received by the customer has arisen due to variance in the weighing scale and further differential duty was paid even before issuance of show cause notice. It has been consistently held that where duty was paid prior to issuance of show cause notice, no penalty is liable to be imposed under Rule 173Q. The Supreme Court Bench comprising Hon’ble Mr. Justice S.N. Variava and Hon’ble Mr. Justice Tarun Chatterjee on 15-7-2005 dismissed the Civil Appeal No. D9377 of 2005 filed by Commissioner of Central Excise, Chennai against the CESTAT Order No. 74/2005, dated 4-1-2005 and reported in 2005 (184) E.L.T. 179 (Tri. - Chennai) (Brakes India Ltd. v. Commissioner). The Appellate Tribunal in its impugned order had held that penalty was not imposable when more than entire duty amount was paid before issuance of show cause notice. By virtue of dismissal of appeal of department the order of the Appellate Tribunal has become the law of the land. Similar views have been taken in the following judgments:Tata Motors Ltd. vs. Commissioner of Central Excise - 2005 (179) E.L.T. 413 (Tri. Kolkata) Commissioner of Central Excise vs. Century Paints and Varnish Work - 2004 (168) E.L.T. 62 (Tri. - Kolkata)

V inay Kumar Shr af f FCA, AICWA, ACS, DISA(ICAI), Adv. Dip. in Mgt. Acctg. (CIMA- London) 52 Weston Street 5th Floor KOLKATA – 700 012 PHONE: 22259194 (O), 98300 61359 (M) e-mail: [email protected]

Commissioner of Central Excise vs. Nexus Computers Ltd. - 2004 (176) E.L.T. 504 (Tri. - Chennai) Hence on the above ground and other grounds taken in the written reply to show cause notice the demand imposition of penalty under Rule 173Q should be dropped. Thanking you, Yours truly, Vinay Kumar Shraff Authorised Representative.