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2024 (1) TMI 390 - AT - Central ExciseLevy of penalty - Discharge of duty liability in respect of clearance effected by availing credit in respect of National Calamity Contingent Duty, Additional Duty of Excise on Pan Masala, Education Cess and Higher Education Cess - contention of the Revenue in the instant appeal is that having confirmed the demand, learned Commissioner ought to have imposed penalty under Section 11AC of Central Excise Act or Rule 25/27 of the Central Excise Rules, 2002. Penalty under Section 11AC - HELD THAT:- The terms of the Section are very clear that penalty under the Section can only be imposed when duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty. Thus, to attract penalty under Section 11AC, the five ingredients should be present and intent to evade payment of duty should be established; Tribunal and Courts have been consistent in holding this opinion. The demand is issued under Section 11A of Central Excise Act, 1944, the proviso is not invoked. No elements of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, have been alleged leave alone discussion and establishment of the same - The ingredients for invocation of extended period being not even alleged, the Commissioner was right in his finding. To that extent, there are no infirmity in not imposing penalty under Section 11A of the Central Excise Act, 1944. Non-imposition of penalty under Rule 25 of Central Excise Act, 2002 - HELD THAT:- It is not the case of the Department also that sub-clauses (a) (b) & (c) are applicable; the same are not even alleged in the show-cause notice; there is not even a whisper in the show-cause notice about manufacture, production, storage, removal of goods in contravention of the provisions of the Act or the Rules made thereunder. Therefore, imposition of penalty for contraventions listed in sub-clauses (a) (b) & (c) of Rule 25(1) of Central Excise Rules, 2002 is beyond the scope of the show-cause notice. the conditions for imposing penalty under Rule 25 are also not satisfied and that learned Commissioner was correct in concluding that no case for imposition of penalty has been made by the Revenue. Coming to the penalty under Rule 27 of Central Excise Rules, 2002, we find that though the learned Commissioner mentions that he refrains from imposing penalty under that Section, the same is not invoked in the show-cause notice. When the same is not invoked in the show-cause notice, there is no way that the Adjudicating Authority could have imposed penalty under Rule 27 of Central Excise Rules, 2002 - the conditions for imposing penalty under Rule 25 are also not satisfied and that learned Commissioner was correct in concluding that no case for imposition of penalty has been made by the Revenue. Penalty under Rule 27 of Central Excise Rules, 2002 - HELD THAT:- Though the learned Commissioner mentions that he refrains from imposing penalty under that Section, the same is not invoked in the show-cause notice. When the same is not invoked in the show-cause notice, there is no way that the Adjudicating Authority could have imposed penalty under Rule 27 of Central Excise Rules, 2002. There is no infirmity in the impugned order and the order does not require any intervention - there are no merit in the appeal - appeal dismissed.
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