TMI Blog2009 (6) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise, Nashik. 2. The brief facts in dispute are that during the visit of the Preventive Officers, they pointed out that the assesseee had cleared Galvanized Transmission Towers and parts thereof with remark on invoices excise duty exempted against P.O.2.1.1 being mega power project and certificate L. No. 5/4/2003-TR-2 dated 10-11-2003 to Kahalgaon Super Thermal Power Project Stage-II for M/s. NTPC through M/s. LBBSBK under international competitive bidding as per Notification No. 2006-CX dated 1-3-2002 as amended by Notification No. 48/2004-C.E., dated 10-9-2004, subject co fulfillment of condition No. 64 of the said Notification. The exemption is available for the supply of the goods against international bidding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11AC of the Central Excise Act, 1944 leviable or not? 7. Section 11AC of the Central Excise Act, 1944 is reproduced as under :- Section 11AC. Penalty for short-levy or non-levy of duty in certain cases - Where any 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, the person who is liable to pay duty as determined under sub-section (2) of Section 11A, shall also be liable to pay a penalty equal to the duty so determined. Provided that where such duty as determined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. On the other hand, the learned Counsel for the respondent submits that the respondent received the Letter of Intent for supply of 33KV OHT Towers for make-up water system package for Kahalgaon STPP, Stage II wherein it was mentioned that the supply for Kahalgaon STPP, Stage II, a mega power project are exempt from excise duty. On receiving of such letter of intent, the respondent immediately wrote a letter No. JS/NSK/173B/BSBK/TED/01 dated 25-12-2005 to the Superintendent of Range-B of Central Excise Customs, Nashik Division-I informing clearance of clearances of finished goods @ nil rate of duty exempted as specified in Sl. No. 400 of Department of Revenue Notification No. 21/2002-Customs dated 1-3-2002 as amended, the supply to Mega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further relied on the judgment of the Hon ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa - 1978 (2) E.L.T. J159 (S.C.), wherein it was held that no penalty should be imposed for technical or venial breach of legal provisions or where the breach flows from the bona fide belief that the offender is not liable to act in the manner prescribed by the statute. 15. I have also gone through the recent judgment passed by the Hon ble Supreme Court in the Civil Appeal No. 3527 of 2009 in Union of India v. Rajasthan Spinning Weaving Mills and Civil Appeal No. 3525 of 2009 in Commissioner of Customs and Central Excise v. M/s. Lanco Industries Ltd. [2009 (238) E.L.T. 3 (S.C.)] wherein in para 13 of the judgment, it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade duty by adopting any of the means mentioned in the section. 18. It is clear from the above discussion, that for imposition of penalty under Section 11AC of the Act, there should be mens-rea to evade duty. 19. The Revenue itself is saying that the respondent had wrongly availed inadmissible exemption. 20. I find that the respondent did not pay duty under bona fide advice/purchase order of the customer and availed exemption under bona fide belief and further the appellant alleged that in the show cause notice and the ground of appeal that the respondent took the benefit of notification wrongly. 21. There was no mens rea proved by the appellant in the facts of this case and in the absence of mens rea, the respondent is not liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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