TMI Blog2014 (9) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... datory penalty for these acts is not leviable. Further, I find that a penalty is proposed to be imposed on shortages of inputs. I find that the respondent had purchased 11,004 MT in a period of six months and there is a negligible shortage of 29 MT in their inputs and that may occur due to the weighment of inputs on various weighment machines. In these circumstances, it cannot be held that the respondent had cleared the inputs clandestinely and no evidence has been produced by the Revenue to this effect. In these circumstances, the provisions of Section 11AC of the Act are not attracted, therefore mandatory penalty is not leviable - As the respondent has paid the duty within the same month, therefore interest is not leviable - Decided again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved by the said order, the Revenue is before me. 3. The learned AR submits that as the respondent has admitted their liability and during the course of investigation, shortages of inputs were found and the goods were cleared by them without payment of duty, therefore the intention of the respondent is very clear that they have suppressed the fact with intent to evade payment of duty. Therefore, mandatory penalty and interest are payable by the respondent. 4. On the other hand, the learned counsel appearing on behalf of the respondent strongly opposes the contentions of the learned AR and submits that the goods have been cleared under invoices during the month of September, 2004 and invoices could not be issued as the person con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viable, but the Hon ble Supreme Court in the case of UOI v. Rajasthan Spinning and Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.) held that if the ingredients of Section 11AC of the Act are invoked, mandatory penalty is leviable. Therefore, in the facts and circumstances of the case, I have to look whether the provisions of Section 11AC can be invoked in the present case or not. Admittedly, in this case goods had been cleared in the month of September, 2004 and duty liability arose by the end of September, 2004. Moreover, the goods had been cleared through delivery challans and the weighment slips were duly recorded in their records, therefore the provisions of Section 11AC of the Act, i.e. fraud, collusion, wilful misstatement, suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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