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2015 (10) TMI 1237 - AT - Central ExcisePenalty under Rule 25 read with Section 11AC - Bonafide belief - Held that:- Appellant in this proceeding is not contesting the chargeability of duty on Spent Earth. It is observed from the Honble Apex Court judgement in the case of CCE, Chandigarh I vs Markfed Vanaspati and Allied Industries Ltd (2003 (4) TMI 98 - SUPREME COURT OF INDIA) that the issue of chargeability of duty on spent earth was settled by the Apex Court. In view of this judgement and bonafide belief on the part of the appellant that no duty liability is attracted on spent earth even after amendment of Section 2(f) of the Central Excise Act 1944. The case law of CCE Jalandar I vs AG Flats Ltd (2011 (7) TMI 968 - CESTAT, NEW DELHI) passed in 2012 makes it clear that there was chargeability of duty on the bye product. The appellant during the period May 2008 to May 2009 may not have any to malafide intention to evade payment of Central Excise duty when by the judgement of Apex Court in the case of CCE Chandigarh I vs Markfed Vanaspati and Allied Industries Ltd (supra) it was held that spent earth is not by an act of manufacturer - penalty imposed by the lower authorities under Rule 25 of the Central Excise Act of 2002 read with Section 11AC of the Central excise Act 1944, is not sustainable and is required to set aside - While confirming the demand of duty, penalty sete aside - Decided partly in favour of assessee.
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