TMI Blog2017 (1) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is not disputing the demand of duty which they have already paid on the spot - the imposition of penalties u/s 11AC is not warranted - demand of duty with interest upheld - appeal allowed - decided in favor of appellant. - Excise Appeal Nos.E/72025/13 to E/72027/2013 - FO/A/76226-76228/16 - Dated:- 2-12-2016 - Shri P. K. Choudhary, Judicial Member Smt. Swapna Das, Advocate For the Appellant Sri A.K. Biswas, Supdt. (A.R.) For the Respondent ORDER Per: Shri P. K. Choudhary M/s. Sharp Ferro Alloys Ltd., the appellant herein is carrying on business of manufacture of Ferro Alloys products. During the visit of Central Excise officers on 28/10/2009, there was shortage of 63.000 MT of Ferro Manganese. The duty liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Shri Selvakumar Textiles Vs. CCE-2005 (188) ELT-334 (CESTAT) and Chhattisgarh High Court's decision in the case of Union of India Vs. Indian Ispat Works Pvt. Ltd.-2015(322) E.L.T. 647 (Chhattisgarh) . She further relied on the decision of the Tribunal in the case of HMTD Engineering Vs. CC-2000 (122) ELT 749 (CEGAT) wherein it was held that personal penalty cannot be imposed on the Managing Director/Director in absence of conscious act on their part justifying penalty. 4. The Ld. A.R. submits that the shortage in the stock of finished goods was admittedly due to the fact that the said quantity of ferro Manganeese found short was actually removed clandestinely from the factory of the appellant without observation of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the finished goods. The finding of the lower authorities that the goods were clandestinely removed is without any basis. I do not find any material that the appellant admitted the charge of clandestine removal at any point of time. In any event, the appellant is not disputing the demand of duty which they have already paid on the spot. Thus, the imposition of penalties under section 11AC is not warranted. The Hon ble High Court of Madras in CCE, Madras Vs. Jkon Engineering Pvt. Ltd. (supra) and the decision of Chhattisgarh High Court in the case of Union of India Vs. Indian Ispat Works Pvt. Ltd (Supra) in which para 7 8 read as under: 7. From perusal of the above quoted order would go to show that a penalty order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention on the part of the assessee in either evading the payment of duty or indulging in any kind of malpractice to avoid payment of duty warranting payment of penalty under Section 11AC of the Act. This was, therefore, not a fit case for imposition of penalty to the assessee, which even otherwise was worked out to ₹ 64,689/-. 7. In the light of the foregoing observations and keeping in view that the entire amount of duty had already been deposited by the assesse prior to issue of the impugned show cause notice, it would not be a fit case for imposition of penalty on the appellant assesse and other appellants. 8. In view of the above discussions, the demand of duty alongwith interest is upheld and the penalties imposed against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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