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2018 (5) TMI 294 - AT - Central ExcisePenalty u/r 25 read with Section 11AC of the Act - short payment of duty as they were not having sufficient balance in their account current as well as in their Cenvat credit account - intent to evade not present - Held that: - the appellant had correctly declared the clearances made by them during respective months and their liability of duty in their ER-1 returns, which were filed on time. Due to admitted financial difficulties and labour trouble in their factory, the appellants could not pay the admitted duty liability - in the show cause notice, there is no express allegation of fraud, suppression or mis-declaration or deliberate attempt to evade the duty. In identical situation, where the assessee had declared their clearances and liability of duty clearly, this Tribunal in the case of Saurashtra Cement Ltd [2008 (1) TMI 595 - CESTAT, AHMEDABAD] has held that penalty under Rule 25 read with Section 11AC of the Act is not invocable and also held that such contravention would attract penal provisions of Rule 27 of the Central Excise Rules, 2002 which provides for maximum penalty of ₹ 5000/-. Penalty is reduced to ₹ 5000/- for each of the default - confirmation of demand of duty and interest thereon is upheld - appeal allowed in part.
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