ORDER
Moheb All M., Member (T)
1. Heard both sides.
2. The issue involved is whether without filing the necessary classification declaration claiming the benefit of concessional rate of duty under Notification No. 78/90-CE dt. 20.3.90 appellants can avail the benefit of concessional rate of 5% Adv. under the said notification. The notification in question exempts goods that are used in Pollution Control Equipments in excess of 5% Adv. subject to the condition that an officer not below the rank of Deputy Secretary in the Ministry of Environment & Forest certifies in each case that the goods manufactured are intended for Pollution Control purposes. Under a schedule to the notification description of goods are given:-
“The appellant cleared Electrical Transformer valued at Rs. 4,50,000)/- on payment of Central Excise Duty availing of the benefit of notification. The allegation of the department is that he did so without filing a classification declaration under Rule 173B, before removing the excisable goods as required under that Rule. The differential duty between the concessional rate availed of by the appellant and the actual rate of duty i.e. 13% Adv. was demanded to the tune of Rs. 36,000/- and a penalty of Rs. 1000/-was imposed. The Commissioner (Appeals) in the impugned order confirmed this demand and the penalty.
3. We have perused the Notification No. 78/90CE. We find that electrical transformer is not one of the items mentioned in the schedule to the notification. The appellant also could not state as to how the transformer is going to be a part of any of the items mentioned in the schedule. Clearly therefore it appears that the appellant availed of the benefit which is not admissible to him under the said notification. We do not find any infirmity in the order of the Commissioner (Appeals). Penalty imposed is for non filing of classification declaration under Rule 173B. In these circumstances under which the goods have been cleared availing of concessional rate of duty without being actually eligible a penalty of Rs. 1000/- is also not excessive.
4. We see no infirmity in the order of the lower appellate authority.
5. The appeal is rejected.
(Pronounced in Court)