TMI Blog2011 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... y with interest before issue of show-cause notice is unsustainable. Quantum of penalty - assessee paid differential duty and the interest payable thereon even before the institution of the proceedings ie. before issue of show cause notice. - Penalty restricted to 25% only. - CEA NO. 11/2011 - - - Dated:- 15-10-2011 - SHRI N. KUMAR AND SHRI RAVI MALIMATH, JJ. Appearances by: Shri Cherias Runnoose for the Appellant. Shri Jeevan J. Neeralgi for the Respondent. JUDGMENT N. Kumar, J. This appeal is by the assessee challenging the order passed by the Tribunal holding that the assessee is liable to pay penalty even though he has paid duty and interest prior to the issue of show cause notice under sections 76 and 78 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded to levy penalty both under sections 76 and 78 of the Act. Aggrieved by the said order of levying penalty, the assessee preferred an appeal to the Commissioner of Central Excise Appeals, who accepting the cause shown by the assessee set aside the order of the assessing authority imposing penalty. In pursuance to the said order the penalty paid was also refunded. The revenue challenged the said order of the Appellate Commissioner before the Tribunal set aside the order of the Appellate Commissioner on the ground that once suppression of facts is established which do not continue sufficient cause for non-payment of duty and interest the penalty is liable to be imposed under sections 76 and 78 of the Act even though the duty and inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To that extent he has shown his bona fides. When the authorities computed the tax payable with interest and intimated him, promptly he has paid the said amount. However, in order to domonstrate that the reason for non-payment of tax was non-receipt of the subscription from the subscribers, he has not produced any material. It is because he has not maintained any records. Not maintaining records cannot constitute a sufficient cause under section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a wilful mistake. Sub-section (4) of section 73 expressly provide the benefit of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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