2010 (12) TMI 387

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..... Mahajan, Advocate, for the Respondent. [Order per : Deepak Gupta, J. (Oral)].  - This appeal was admitted on the following substantial question of law :- "Whether interest and penalty is imposable even if Central Excise Duty has been deposited by the assessee before show cause notice in case where the said duty is deposited not voluntarily but on detection by the department?" 2. As .....

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..... lity to pay penalty in the situations mentioned therein. Once a case is covered by the situation mentioned in the Section, mere deposit prior to issuance of show cause notice under Section 11A of the Act will not necessarily negate the situation mentioned in the said Section. It would be apposite to refer to a judgment of the Apex Court delivered in Sony India Ltd. (supra) wherein the Apex Court .....

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..... sp;The question as to whether penalty should be imposed or not is a question of fact. Since this question has not been determined by the Assessing Officer, Commissioner (Appeals) or the Tribunal whose decisions are based only on the consideration that the excise duty was deposited prior to the issuance of the show cause notice, we set-aside the orders of the said authorities and remand the case ba .....

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