TMI Blog2012 (10) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... usion, wilful mis-statement or suppression of fact or contravention of any of the provisions of the Act with intent to evade payment of duty - in the show-cause notice, all that has been alleged is mis-statement or wrong classification, but no allegation of fraud, collusion, suppression or intention to evade lawful duty has been made. Therefore, for the selfsame reason, penalty also cannot be imposed. - 1341 of 2011 - - - Dated:- 15-2-2012 - Bhaskar Bhattacharya ACJ and J.B. Pardiwala, J. REPRESENTED BY : Shri R.J. Oza, for the Appellant. None, for the Respondent. [Order per : Bhaskar Bhattacharya, ACJ (Oral)]. This Appeal under Section 35G of the Central Excise Act, 1944 [ the Act ] is at the instance of the Revenue an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct-matter of appeal. The question, however, was whether in such circumstances, the assessee should be liable to pay interest and penalty as provided under Section 11AB of the Act and Rule 173Q[1] of the Central Excise Rules, 1944 [ the Rules ]. 3.4 The learned Tribunal below, after hearing both the parties, came to the conclusion that it was not a case of mala fide on the part of the assessee so as to invoke penal action against it. The Tribunal below further came to the conclusion that in such circumstances, in the absence of any mala fide intention of the assessee in evading the amount of duty, no order of interest should also be passed in view of the then provision of Section 11AB of the Act. 3. Therefore, the only question that aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay interest at such rate not below ten per cent and not exceeding thirty per cent per annum, as is for the time being fixed by the Board, from the first day of the month succeeding the month in which the duty ought to have been paid under this Act or the rules made thereunder or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section [2] of section 11A, till the date of payment of such duty. [2] For the removal of doubts, it is hereby declared that the provisions of sub-section [1] shall not apply to cases where the duty became payable before the date on which the Finance [No. 2] Bill, 1996 receives the assent of the President. Explanation 1. - Where the duty determined to be payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate rate on delayed payment under Section 11AB of the Act. 9. In the show-cause notice, no allegation of any fraud, collusion, wilful mis-statement, or suppression of fact or contravention with intent to evade payment of duty has been made. 10. Therefore, we find substance in the reason assigned by the Tribunal below that in the absence of such allegation in accordance with law as it stood, there was no scope of invoking the provisions of interest within the meaning of Section 11AB of the Act. 11. Similarly, the penalty can be applied only by taking aid of Section 11 AC of the Central Excise Act, 1944 where there is collusion, wilful mis-statement or suppression of fact or contravention of any of the provisions of the Act with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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