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TMI Blog2009 (10) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to dismiss the same on the basis of the aforesaid principle settled in various judgments as is evident from the following para : "After hearing learned counsel for the appellant and perusing the record we find that the matter is not res integra in as much as, we have already decided similar appeals against the revenue and in favour of the assessee in the cases of Commissioner of Central Excise, Ludhiana v. M/s. Omkar Steel Tubes (P) Ltd. (CEA No. 5 of 2007, decided on 28-8-2007); Commissioner of Central Excise, Ludhiana v. M/s. Crop Chemical India Ltd. and another (CEA No. 6 of 2007, decided on 31-8-2007); Commissioner of Central Excise, Delhi-III v. M/s. Sun Vacuum Former Pvt. Ltd. (CEA No. 56 of 2007, decided on 7-9-2007); and Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y premises of the dealer on 30-3-2005 and detected shortage of 7.601 MT. of PVC pipes involving central excise duty/credit of Rs. 55,821/-. The Director of the unit Shri Sanjeev Kumar in his signed statement admitted the shortage by stating the reason of mis-reporting by illiterate labour. The amount of duty payable on the goods found short was deposited by the dealer. For confirmation of duty under Section 11A of the Act read with Rule 74 of the Cenvat Credit Rules, 2004 (for brevity 'the 2004 Rules') a show cause notice was issued to the dealer with a proposal for imposition of penalty under Rule 25 of the Central Excise Rules, 2002 (for brevity 'the Rules') read with Rule 15 of the 2004 Rules and Section 11AC of the Act. A separate show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellate authority holding that no substantial question would arise in view of the settled position of law including the one rendered by the Bombay High Court in the case of CCE 1 v. Gaurav Mercantilcs Ltd. - 2005 (190) E.L.T. 11 (Bom.) The principle of law laid down in these judgments is that if the amount of duty has been deposited before issuance of show cause notice then no interest or penalty would be imposable. 6. The Hon'ble Supreme Court has set aside the view taken by the Division Bench of this Court and has remitted the matter to this Court for decision afresh in the light of the judgment in Dharamendra Textile Processors's case (supra). However, the view taken by the Hon'ble Supreme Court in Dharamendra Textile Processor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to sub-section (1) of Section 11A and Section 11AC use the same expressions: "....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 there under with intent to evade payment of duty,...". In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11A(1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under Section 11A(2) there is a legally tenable finding to that effect then the provision of Section 11AC would also get attracted. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11AC or 11AB of the Act. The view of their Lordship is discernible from para 15 of the judgment in the case of Rajasthan Spinning and Weaving Mills (supra). The aforesaid view reads thus : "15. Sub-section (2B) of Section 11A provides that in case the person in default makes payment of the escaped amount of duty before the service of notice then the Revenue will not give him the notice under Sub-Section 1. This, perhaps, is the basis of the common though erroneous view that no penalty would be leviable if the escaped amount of duty is paid before the service of notice. It, however, overlooks the two explanations qualifying the main provision. Explanation 1 makes it clear that the payment would, nevertheless, be subject to imposition of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the basis of eye estimate because to weigh such a huge quantity of 7.601 MT. a number of days were required to load the trucks and then to take them to weighment bridge for loading and unloading the same to weigh the material a number of times. However, the Assessing Authority has concluded that the dealer was fully satisfied with the manner of verification of stock and he had put his signatures on the stock statement as taken of its correctness. He admitted his lapse and debited the duty. 11. On further appeal before the appellate authority the aforesaid findings have not been tinkered with and the appellate authority allowed the appeal on the basis of various judgments laying down the principle that if the amount of duty is deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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