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2009 (8) TMI 991

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..... he duty amount, the penalty on Shri Shailendra Khandelwal, Director of the respondent-company is also reduced to ₹ 5,000/-. - appeal allowed - decided partly in favor of Revenue. - E/2006 and 2010/2007-SM - 1068-1069/2009-SM(BR)(PB) - Dated:- 12-8-2009 - Shri Rakesh Kumar, J. Shri S.K. Bhaskar, DR, for the Appellant. None, for the Respondent. ORDER These two appeals have been filed by the Revenue against Order-in-Appeal No. 92 93-CE/APPL/KNP/2007 dated 9-3-07 passed by the Commissioner, Customs and Central Excise, Kanpur by which ld. Commissioner while upholding the duty demand confirmed by the Asst. Commissioner against the respondent for clandestine removal of finished goods without paying Excise duty, set aside .....

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..... lation of any of the provisions of Central Excise Act, 1944 of the Rule made thereunder with intent to evade payment of duty, are present and that in view of the Hon ble Supreme Court s judgment, the judgment of Hon ble Bombay High Court in the case of Gaurav Mercantile Ltd. (supra) or the judgment of Hon ble Karnataka High Court in the case of Shree Krishna Pipe Industries (supra) or the judgment of Rashtriya Ispat Nigam Ltd. (supra) are no longer a good law. 3.1 The ld. DR also pleaded that since this is a case of clandestine removal of finished goods without payment of duty and this has been admitted by the Director, the Director is also liable to face penalty under Rule 26 of the central Excise Rules, 2002 and the Commissioner (Appeal .....

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..... tion for the shortage and in his statement dated 19-7-2005 he admitted that the goods had been removed without payment of duty and he also paid entire duty at that time on the shortage. In view of the above I hold that this is a case of clandestine removal and the elements of Section 11AC for imposition of penalty under 11AC are present. Hence the Commissioner (Appeals) s order setting aside the penalty is not correct - more so in view of Hon ble Supreme Court s judgment in the case of Union of India v. Rajasthan Spinning and Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.). However, since the entire duty had been paid prior to issue of show cause notice and there was no interest liability, in accordance with the first proviso to Sect .....

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