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2011 (1) TMI 1133 - AT - Central ExcisePenalty of short payment of duty - capacity of production based duty - provisional assessment - hed that:- The fact that the differential duty held payable by the provisional determination came down drastically shows that there is no mala fide on the part of the assessee to evade payment of duty. In my considered opinion, short-levy which came to be known consequent to re-determination after 5 to 6 years cannot invite penal provision prescribed under Rule 96ZO. The assessee could not have anticipated short levy arising out of re-determination after 5 to 6 years. There is no valid reason adduced for the inordinate delay in re-determination of duty liability in terms of sub-section (sic) of Section 3A. Under these circumstances, it is a fit case for not sustaining penalties, penalties are set aside and the appeals are allowed
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