TMI Blog2012 (9) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... been recorded by the adjudicating authority, the question of imposing penalty under Section 11AC of the Act and Rule 25 of the Rules would not arise - 112 of 2011 - - - Dated:- 4-8-2011 - Goda Raghuram and Ashutosh Mohunta, JJ. REPRESENTED BY : Shri A. Rajashekhar Reddy, SSC, for the Appellant. [Judgment]. This is an appeal by the Revenue under Section 35(G) of the Central Excise Act, 1944 (for short the Act ) against the Order dated 27-12-2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (the Tribunal) in Appeal No. C/768/07 rejecting the appeal of the Revenue against the order dated 9-7-2007 passed by the Commissioner of Customs, Excise and Service Tax (Appeals-I) in Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act. Eventually, a show cause notice was issued as to why an amount of Rs. 4,29,441/- for differential duty on excess value received on the clearance of goods through the consignment agents during the period from 1-10-2005 to 31-3-2006 be not paid by the respondent; why interest at the applicable rate should not be demanded on the demanded amount, under Section 11AB of the Act; why a penalty equivalent to the duty determined should not be imposed under Section 11AC of the Act; and why penalty should not be imposed on the respondent under Rule 25 of the Central Excise Rules, 2002 (for short the Rules ), for the contraventions mentioned in the show cause notice. The respondent assessee denied any suppression or intent to evade the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules without assigning any reason. The appellate Commissioner clearly held that the penalty is not to be imposed merely because it is lawful to do so and that penalty will not ordinarily be imposed unless the party either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation, relying on the judgment of the Supreme Court in Hindustan Steels Ltd. (supra). 5. There against, the appellant herein - the Revenue carried the matter unsuccessfully in appeal before the Tribunal, which by the order impugned rejected the appeal confirming the order passed by the Commissioner of Customs Central Excise. 6. Rule 25 of the Central Excise Rules, 2002, opens with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise v. Tripura Containers Pvt. Ltd. [2011 (264) E.L.T. 339 (Guj.)], wherein the following interpretation on the interplay of the Act and the Rules is set out as under : Insofar as invocation of the provisions of Section 11AC of the Act and Rule 25 of the Rules is concerned, in the entire order of the adjudicating authority there is no finding to the effect that there is any fraud, misrepresentation or suppression of facts or that there is contravention of the provisions of the Act or Rules with intent to evade payment of duty on the part of the assessee. Rule 25 of the Rules provides for levy of penalty in case of any contravention of the nature referred to in clauses (a) to (d) therein. Rule 25 opens with the words, subject to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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