2009 (12) TMI 738

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..... y of equal amount under Section 11AC of the Central Excise Act, 1944 in addition to imposing a further penalty of Rs. 25,000/- under Rule 173Q of the Central Excise Rules, 1944 and demanding interest under Section 11AB of the Act. The lower appellate authority has set aside the demand except for an amount of Rs. 387/-, and the penalty leading to this appeal by the Department. 2. Shri V.V. Hariharan, learned Jt. CDR appearing for the Department argues that the impugned Order-in-Appeal requires to be set aside for the reason that the same has been passed without taking into account the voluntary statements made by the Director and Despatch Clerk of the respondent-company to the effect that the clearances were made without payment of duty. He .....

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..... mt. Sujatha, Director of the company and the same cannot be relied upon as she was new and not in-charge of the day to day activities. He also reiterates the defence taken before the lower appellate authority. He argues that the original authority while confirming the demand had not allowed cum-duty assessment which is required to be allowed in the event, the explanation put forth by the respondents is not accepted by the Tribunal. Similarly, he states that the original authority has not allowed input duty credit in respect of inputs used in the alleged clandestine manufacture and clearance of the impugned goods. 4. After hearing both sides and perusal of case records, we find that the respondents have admitted in the course of investigat .....

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..... y requires to be quashed and the order of the original authority requires to be upheld. We order accordingly. However, we are of the view that the duty amount determined is required to be reworked giving the respondents the benefit of cum-duty price assessment as the related documents do not show collection of the excise duty separately. As regards the penalty under Section 11AC is concerned, we uphold the same but the amount has to be re-worked out along with the re-quantification of the duty demand. We find that there is no warrant for imposition of a separate penalty under Rule 173Q in this case and hence penalty of Rs. 25,000/-imposed under the said rule is set aside. The interest under Section 11AB would be leviable in accordance with .....

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