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2011 (2) TMI 472 - BOMBAY HIGH COURTPenalty levied under Section 11AC - duty and interest was paid before issuance of the show-cause notice - Revenue allegation is that the assessee had effected the clearances with an intention to evade payment of duty by fraudulently claiming benefit of the exemption Notification, the issuance of the show-cause notice on 26-12-2005 would be valid - The Tribunal, therefore, ought to have examined whether the Explanation 1 to sub-section (2B) of Section 11A is applicable in the present case The finding that the proposal made in the show cause notice was in breach of injunction contained in sub-section (2B) of Section 11A is erroneous and cannot be sustained - The Tribunal ought to have either confirmed the findings recorded by the Commissioner on the point of suppression/fraud and intention to evade the duty or examined the said question independently if the findings recorded by the Commissioner (Appeals), in the opinion of the Tribunal, were perverse - Accordingly, the decision of the Tribunal to the extent it holds that the show-cause notice was invalid in view of Section 11A(2B) of the Act cannot be sustained - Since the CESTAT has not given any finding , whether there was fraudulent intention to evade duty - Remand the matter.
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