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2012 (12) TMI 222 - AT - Central ExcisePenalty whether mandatory - Section 11AC or Rule 25 - intention to evade payment of duty – Held that:- A mandatory penalty equal to the duty (neither more nor less), short paid or not paid or erroneously refunded is payable if such non-payment or short payment or erroneous refund was due to fraud, collusion, wilful misstatement or suppression of facts etc. under Section 11AC. - Rule 25(1) does not envisage mandatory penalty equal to duty, the rule only provides penalty upto duty payable on such contravening goods or Rs. 2,000/- whichever is higher. However, from the above it does not follow that provisions of Rule 25(1) would not apply in case the ingredients of fraud, wilful mis-statement or suppression etc. are not present. Otherwise the provisions of Rule 25(1) would be rendered otiose. Proposal in the show cause notice was for imposition of penalty for contravention of Rule 4 and Rule 8 ibid, under Section 11AC read with Rule 25(1) - there is no suppression of facts before the Department of wilful mis-statement or fraud or evasion of duty - this is not a case where the penal provisions can be upheld or that where the penalty can be imposed - provisions of Section 11AC are para-materia to the provisions of Rule 25(1)(d) so far as the contravention of any of the provisions of Rules with intent to evade payment of duty is concerned - penalty is not imposable under Rule 25 – in favor of assessee
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