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: vshraff@hotmail.com

Assisstant Commissioner of Central Excise January 12, 2006

Howrah West Division,
25, Princep Street,
Kolkata – 72

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: vshraff@hotmail.com

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.