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2009 (11) TMI 10 - HC - Central ExcisePenalty – mandatory penalty - Whether interest and penalty is imposable even if C.E duty has been deposited by the assessee before Show Cause Notice in case where the said duties deposited not voluntarily but on detection by the department – held that - The question as to whether penalty should be imposed or not is a question of fact. Since this question has not been determined by the Commissioner (Appeals) or the Tribunal whose decisions are based only on the consideration that the excise duty was deposited prior to the issuance of the show cause notice, we set-aside the orders of the Commissioner (Appeals) and the Tribunal and remand the case back to the Commissioner (Appeals) for fresh decision on the issue of penalty after determining the question whether the non-payment of duty in the present case was on account of fraud, collision or any willful mis-representation or suppression of facts or contravention of any of the provisions of the Excise Act or the Rules made thereunder with intention to evade payment of duty as laid down under Section 11AC.
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