TMI Blog2010 (12) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... of imposition of penalty under Section 11AC are present, there is no discretion left with the adjudicating authority and the penalty has to be imposed – decided in favor of revenue. - E/1241/08-SM, E/CO/368/2008-SM - - - Dated:- 30-12-2010 - Mr.Rakesh Kumar J, Present for the Appellant: Shri R.k.Gupta, SDR Present for the Respondent: Shri None PER: RAKESH KUMAR The facts giving rise to this appeal and the cross objection filed by the respondent are, in brief, as under:- 1.1 The respondent are manufacturer of M.S. Ingots chargeable to Central Excise duty. They were availing the facility of cenvat credit of the duty paid on inputs and capital goods used in or in relation to the manufacture of finished goods under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the show cause notice was confirmed. Besides this, the penalty of equal amount was imposed under Rule 13 of Cenvat Credit Rules, 2002 read with Section 11AC of Central Excise Act, 1944. The respondent filed appeal to Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 31.3.2008, while upholding the demand in respect of shortage of 34.200 MT of sponge iron, set aside the penalty on the ground that the duty on the shortage had been paid prior to issue of show cause notice and in this regard, he relied on the judgement of Honrable Supreme Court in the case of Rashtriya Ispat Nigam Ltd. reported in 2004 (163) ELT A-53 (SC) and also judgement of Hon ble High Court of Bombay in the case of Gaurav Mercantile Ltd. reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 13 of Cenvat Credit Rules, 2002 read with Section 11AC of Central Excise Act, 1944; that the observation of the Commissioner (Appeals) that there is no evidence of clandestine removal is not correct, as huge shortage of 34.200 MT of sponge iron for which no satisfactory explanation has been given by the respondent, is itself an evidence of clandestine removal; that just because the duty amount involved on the shortage has been paid prior to issue of show cause notice, the penalty under Rule 13 of Cenvat Credit Rules, 2002 read with Section 11AC of Central Excise Act, 1944 cannot be waived; that the judgement of Honrable Supreme Court in the case of Rashtriya Ispat Nigam Ltd. (supra) and is not applicable to the facts of this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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