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2016 (12) TMI 1269 - BOMBAY HIGH COURTImposition of penalty u/s 11AC - duty paid after detection by Department - Clandestine removal - short payment of duty - suppression of facts - reliance placed in the decision of the case of Dharmendra Textile[2008 (9) TMI 52 - SUPREME COURT] and Rajasthan Spinning and Weaving Mills[2009 (5) TMI 15 - SUPREME COURT OF INDIA] - in the case of Rajasthan Spinning, the tribunal had taken a view that there was no warrant for levy of penalty since the assessee had deposited the balance amount even before the show cause notice was issued. However, the Revenue contended that in the case of Dharmendra Textile, the Hon'ble Supreme Court had taken a view that mere non payment or short payment of duty, without anything else would inevitably lead to imposition of penalty equal to the amount by which duty was short paid. Held that: - After noting the facts at length, the arguments of both sides, the Hon'ble Supreme Court of India concluded that The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of section 11AC - we see no reason to overturn or reverse the view taken by the tribunal. The view taken in its order passed and in the year 2005 cannot be said to be perverse or vitiated by any error of law apparent on the face of the record. Appeal dismissed - decided against appellant-Revenue.
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