9911796707
TMI Blog2012 (9) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent? The Revenue had challenged only penalty part of the order and the matter was remanded back by this Hon'ble Court. (b) Whether in the facts and circumstances of the case and in law, the Tribunal is justified in holding that Sec. 11AC is not applicable when the evidence on record clearly shows that there is clearly a suppression, which was alleged in the show cause notice and the detailed finding has been recorded by the adjudicating authority? (c) Whether in the facts and circumstances of the case and in law, the findings of the Tribunal are perverse? 2. The appeal is admitted on the above questions and taken up for hearing by consent of the counsel on both sides. 3. The relevant facts are that by an order-in-original dated 30th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.58,915/- and Rs.41,600/- which was denied by the Lower Authority remanded the same to that authority for fresh consideration. Challenging the aforesaid order, the Revenue has filed the present appeal. It is not in dispute that in the meantime, the assessee has deposited the penalty amounting to Rs.4,50,000/-. 5. In so far as the first question is concerned, no doubt that this Court by its order dated 3rd July, 2008 had allowed the appeal filed by the Revenue thereby setting aside the order of the Tribunal dated 5th September, 2006 in so far as it related to reducing the penalty imposed under section 11AC of the Act. However, it appears that confusion had arisen in view of the clarificatory order passed by this Court on 23rd September, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount with interest. Hence, the first question does not survive. 9. As regards the 2nd and 3rd questions are concerned, the finding of fact recorded by the Tribunal is that though the assessee had suppressed the fact of claiming depreciation on capital goods, it was a bona fide error and there was no intention to evade duty. Admittedly, on realising the mistake, the assesee took steps to withdraw the claim of depreciation and since that did not materialise, the assessee offered to pay the duty with interest. In these circumstances, the decision of the Tribunal that Section 11AC is not attracted, cannot be faulted. 10. Similarly, the question of the assessing officer reconsidering the modvat credit of Rs.58,915/- and Rs.41,600/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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