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2014 (9) TMI 222 - HC - Central ExcisePenalty u/s 11AC - Clearance of rough castings to Rice Mill Division without payment of duty - Held that:- Under Section 11AC of the Act, it has been held by the Hon’ble Supreme Court in the case of Dharamendra Textile Processors and Others reported in [2008 (9) TMI 52 - SUPREME COURT] that it is mandatory and adjudicating authority has got no discretion to levy lesser penalty. There must be a factual finding rendered by stating that the act of the assessee attracts the conditions expressly contemplated under Section 11AC of the Act. From the reading of the order of the Tribunal, we could see no such finding of fact with regard to such an intention on the part of the assessee was rendered. Therefore, in the absence of any factual finding on that aspect, imposition of penalty cannot be sustained and therefore, the matter has to be remitted back to the Tribunal for rendering a factual finding as to whether there was any intention on the part of the assessee in not paying the duty in time. In fact the Tribunal had rejected the levy of penalty and interest only on the reason that assessee had paid the duty before issue of show cause notice. - Decided in favour of assessee.
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