TMI Blog2014 (5) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... particular manner or with reference to a particular decision, such lower court or authority would be required to decide the issue in that manner only. The cryptic approach, as is reflected from the impugned order, cannot be justified. It is always permissible for the Tribunal to take a particular view and arrive at its own conclusion, however, the order it may pass has to be in conformity with the directions issued by this Court while remanding the matter. It is deemed appropriate that the matter is again remanded to the Tribunal for passing a fresh order - decided in favor of revenue. - Tax Appeal No. 2330 of 2010 - - - Dated:- 29-10-2012 - V.M. Sahai and N.V. Anjaria, JJ. Shri Y.N. Ravani, or the Appellant. JUDGMENT Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the equivalent penalty as well as the interest should not be recovered/the duty should not be appropriated. It was alleged in the show-cause notice that the assessee had failed to keep the prescribed invoices and maintain the accounts with an intent to evade the excise duty. 3.2 The aforementioned show cause notice culminated into order dated 22nd January 2004 by the Assistant Commissioner of Central Excise and Customs, Division-I, Vadodara. It did not accept the case of the assessee that the shortage was not due to any clandestine removal. Accordingly, the adjudicating authority ordered recovery of Rs. 1,40,898/- under Section 11A of the Act and appropriation of the said amount which was already paid by the assessee. Under Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Larger Bench decision, I find that the penalty and interest is not imposable. I, therefore, confirm the duty amount and as regards the penalty and interest, the same is set aside. 3.4 It appears that against the aforesaid order dated 20th March 2006, the department had preferred Tax Appeal No. 1275 of 2006 before this Court. By oral order dated 23rd June 2009 passed in the said appeal, a Division Bench of this Court set aside the order of the Tribunal and remanded the matter to the Tribunal for consideration of applicability of Section 11AC of the Act in light of the judgments of Apex Court in the case of Union of India v. Dharamendra Textile Processors, (2008) 13 SCC 369 = 2008 (231) E.L.T. 3 (S.C.) and in the case of Union of India v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside and the matter is remanded back to the Tribunal for reconsideration of the question of applicability of Section 11AC of the Central Excise Act in light of the judgments of the Apex Court in the case of Union of India v. Dharamendra Textile Processors, 2008 (231) E.L.T. 3 and in the case of Union of India v. Rajasthan Spinning Weaving Mills Anr. 2009 (92) RLT 691 (SC) = 2009 (238) E.L.T. 3 (S.C.). The appeal stands disposed of accordingly . 3. The learned advocate for ZFL submitted that this is not a case where Section 11AC could have been invoked. According to him this is a case of admitted shortage followed by no investigation whatsoever. He relied upon several decisions of the Tribunal to support his contention that in such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was contended that Proviso to Section 11AC would apply when the duty is paid along with interest and the penalty within 30 days. In the context of the contents of impugned order of the Tribunal, the ground canvassed did not bear relevance inasmuch as the Tribunal allowed the appeal of the assessee on the footing that the penalty under Section 11AC was not imposable because, the assessee having admitted the short duty payable and having paid the same, the clandestine removal was not established on evidence. 6. However, having considered that total compass of the matter, it was clear from the order of remand passed by this Court in Tax Appeal No. 1275 of 2006 that the issue was remitted back to the Tribunal and the Tribunal was directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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