TMI Blog2012 (11) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ut recording any reasons and finding with respect to the intention of the assessee which entails the assessee for the penalty under Section 11AC of the Act of 1944 - violation must be with intent to evade payment of duty and that is the question of fact which alone could have been the foundational fact for imposition of penalty. Such finding is not recorded by the Assessing Officer nor an inferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty imposed under Section 11AC of the Central Excise Act, 1944, was challenged by the assessee and the Tribunal allowed the appeal and set aside the penalty. 4. Learned counsel for the appellant vehemently submitted that the Tribunal proceeded absolutely on wrong assumption of fact and in fact questioned the finding recorded even in the Assessment Order wherein it was found that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessment proceeding and recorded finding with respect to the shortage of goods so as to infer that the finished goods must have been removed. After recording all the reasons for this finding, which has already been recorded in the assessment proceeding, the Assessing Officer straightway proceeded to pass the order of imposition of penalty under Section 11AC of the Act of 1944 without recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which alone could have been the foundational fact for imposition of penalty. Such finding is not recorded by the Assessing Officer nor an inference can be drawn from the reasons given in the order impugned of the Assessing Officer so as to draw inference that the action of the assessee was intentional. Therefore, we do not find any merit in this appeal, hence this Tax Appeal is dismissed. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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