TMI Blog2007 (4) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to non-payment of duty. In these circumstances, notice was issued demanding a sum of Rs. 1,80,341/- by the Department. The State Government also claimed a demand of Rs. 44,788/- being 8% of the value of clearance of exempted products in the case on hand. Thereafter, duty was made over. The Joint Commissioner confirmed the payment in terms of the order. However, he levied penalty under Section 11C of the Act read with Rule 172 of the Central Excise Rules. Assessee aggrieved by the imposition of penalty and levy of interest filed an appeal before the Commissioner-Appeals unsuccessfully. Thereafter assessee moved the Tribunal. The Tribunal accepted case of the case. State is therefore before us. 2. The following questions of law are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered this aspect of the matter and that therefore matter requires reconsideration. Per contra, learned Counsel for the assessee would support the order. They would say that in identical circumstances, this Court has accepted similar order and it is also brought to our notice that the Tribunal has passed several orders adverse to the State in such circumstances all over the country. 5. After hearing, we have carefully perused the material on record. 6. It is unnecessary for us to refer to all the facts for the purpose of this order. 7. Admitted facts would reveal that duty has been made over before issue of show cause notice. The Tribunal after noticing this aspect of the matter and after noticing a judgment of a Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, imposition of penalty is not justified, so also interest. 11. The Tribunal has only chosen to follow the Apex Court judgment and judgment of this Court. However, Sri Arvind Kumar, learned Counsel would point out that Shree Krishna Pipe Industry's case would not be available on the facts of this case. It was under different circumstances. It was not after efforts of the Department. In the light of the submission, we have seen the facts of Shree Krishna Pipe's case. 12. From the facts in Krishna Pipes case, we see that assessee was a registered SSU manufacturing rigid PVC pipes. The SSU whose turnover is less than Rs. 50 lakhs is not required to register themselves under the Central Excise Act and is not liable to pay the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a conclusion that penalty is payable despite payment of duty. A further reading of the facts would show that judgment was rendered in different circumstances. In that case, the Court was considering the fourth proviso to Rule 96ZP(3) of the Central Excise Rules wherein it is specifically provided for penalty in the event of non-payment of duty by 10th of every month. It was in those circumstances the Court has chosen to impose penalty. Moreover, the Allahabad High Court has not chosen to refer to the judgment of the Apex Court in Rashtriya Ispat Nigam Ltd. In these circumstances, we find ourselves unable to accept the submission of Sri Arvind Kumar on the basis of the Allahabad High Court judgment. 14. Similarly, we find ourselves u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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