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2013 (10) TMI 1317 - HC - Central ExcisePenalty u/s 11AC - violation under Section 6(3) of the Cenvat Credit Rules - Held that:- even though the assessee had raised an issue of bona fide belief, the Tribunal accepted the case of the assessee straight away holding that they had been submitting periodical returns and they were not told earlier to made their payment. Taking into account that the assessee had not disputed the duty and interest liability, the Tribunal simply cancelled the levy of penalty. Even though the Tribunal had not in principle adverted to the twin conditions laid down under Section 11AC, we do not think that we need to remand the matter once again for the simple reason that the show cause notice issued on 9-5-2006 makes no reference as to the satisfaction of the Adjudicating Authority as to the twin conditions being satisfied before imposing penalty under Section 11AC. Except for pointing out to the violation committed by the assessee resulting in the demand of duty and interest, as far as the levy of penalty is concerned, the show cause notice had called upon the assessee to reply as to why penalty could not be imposed under Section 11AC. Even though the first Appellate Authority stated that the Adjudicating Authority had found that the short levy had occurred on account of wilful suppression of material fact, we searched in vain of such an observation in the order of the Adjudicating Authority only to find that there is no discussion on this aspect. Thus, when facts are clear that there is no such allegation as to the wilfulness in the misstatement or suppression of facts with an intention to evade payment of duty, applying the decision of the Supreme Court [2009 (7) TMI 6 - SUPREME COURT], we had no hesitation in rejecting the Revenue’s case - Decided against Revenue.
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