TMI Blog2011 (7) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate, for the Appellant. [Judgment per : Anil R. Dave. J.]. Delay condoned. 2. Leave granted. 3. Being aggrieved by the judgment and order dated 1st July, 2008 delivered in the CEA No. 59/2007 by the High Court of Karnataka at Bangalore [2009 (234) E.L.T. 428 (Kar.)], this appeal has been filed by the Revenue. 4. The respondent, a limited company, is a holder of Central Excise Registration and is a manufacturer of data processing machines and is also availing benefits under Modvat Scheme. On 25-10-1996, Superintendent of Central Excise visited the factory premises of the respondent-assessee for verification of the stock of inputs on which Modvat credit was availed. It was noticed that there was a vast difference between p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from it and penalty under Section 11AC of the Central Excise Act, 1944 (hereinafter referred to as the Act ) read with Rule 173Q and Rule 210 of the Central Excise Rules, 1944 be not imposed and interest thereon should not be recovered from it under Section 11AB of the Act. 6. After considering the reply and upon hearing a representative of the respondent-assessee, the Joint Commissioner of Central Excise vide his order in original Sl. No. 14/2000, dated 9-8-2000, dropped further proceedings in the matter after giving a warning to the respondent-assessee. 7. Aggrieved by the order of the Joint Commissioner of Central Excise, the Department filed an appeal before the Commissioner (Appeals), Bangalore. The Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2005, the respondent-assessee filed an appeal before the Commissioner(Appeals) but the Commissioner (Appeals) dismissed the appeal, vide order dated 23-1-2006. 11. On appeal to the CESTAT, the Tribunal, relying on the judgment of this Hon ble Court in Nizam Susar Factory v. CCE, A.P. - 2006 (11) SCC 573 = 2006 (197) E.L.T. 465 (S.C.) = 2008 (9) S.T.R. 314 (S.C.) allowed the appeal, vide its order dated 20-12-2006, holding that the show cause notice was issued belatedly and that too without prior permission of the Commissioner as per the provisions of Section 11A of the Act. 12. On appeal before the High Court of Karnataka, the High Court dismissed the appeal of the Revenue by holding that the Tribunal had rightly recorded a finding o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in dispute that alleged suppression of payment of duty by the respondent-company was brought to the notice of the authority on 25th October, 1996, when the Superintendent of Central Excise had inspected the premises of the respondent-assessee, whereas the show cause notice was issued on 26th June, 2000. The department could not establish that there was any suppression of facts or a fraud on the part of the respondent-assessee. We find that the honest mistake committed in maintenance of stock register etc. was frankly admitted by the Managing Director of the respondent-assessee. There is no finding to the effect that there was a fraud or willful mis-statement or suppression of facts. Thus, it is very clear that the notice was issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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