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2009 (10) TMI 771 - HC - Central ExciseWhether equal penalty under Section 11AC is not imposable on the assessee merely on the ground that the duty has been deposited before the issue of show cause notice ? Whether in the facts and circumstances of this case, Section 11AC of the Act would be applicable so as to attract the provisions of interest and penalty under Section 11AC as well as 11AB of the Act?” Held that:- In the light of the absence of findings of clandestine removal of goods or any fraud, mis-representation, suppression of facts with the intention to evade duty, Section 11AC of the Act read with Rule 25 the Rules would not get attracted as has been held by the Hon’ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills’s case (2009 (5) TMI 15 - SUPREME COURT OF INDIA). The question of law at ‘A’ is answered in favour of the revenue. It is held that Section 11AC of the Act would be attracted and the amount of penalty equivalent to the amount of duty becomes imposable. There is no discretion vested in the assessing authority, appellate authority or the Tribunal to reduce the penal amount except in the circumstances contemplated by various provisos to Section 11AC of the Act. Having answered the aforesaid question in favour of the Revenue, the other question whether Section 11AC of the Act is attracted to the facts of the present case has to be answered against the Revenue and in favour of the dealer.
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