TMI Blog2014 (11) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted and the authority recorded a clear finding that there is an intention to evade payment of duty then penalty equivalent, to the amount of duty becomes automatic. Tribunal while considering the case of the assessee concurred with the Original Authority as well as the first Appellate Authority that the conduct of the assessee was contumacious and their conduct was with an intent to evade payment of duty. Having recorded such a factual finding there was no jurisdiction for the Tribunal to reduce the penalty in terms of the language employed of Section 11AC - Decided in favour of Revenue. - C.M.A. No. 2800 of 2006 - - - Dated:- 5-2-2014 - Chitra Venkataraman and T.S. Sivagnanam, JJ. Shri E. Vijay Anand, Advocate, for the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent given by the proprietor of the assessee, he admitted such diversion. In terms of Rule 19(2) read along with the provisions of the Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001, the manufacturer or processor shall procure excisable goods without payment of duty for manufacture of export goods and the intended purpose of procuring yarn to manufacture grey fabrics to export was not fulfilled and the duty free goods were sold in the market. A show cause notice was issued to the assessee under Section 11A(1) of the Central Excise Act, 1944, (Act) demanding duty of ₹ 1,95,990/- and proposing to levy interest under Section 11AB and penalty under Rule 25 and Section 11AC of the Act. The Adjudicating Officer after considering the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification. That apart, the Tribunal recorded a specific finding that the conduct of the assessee was with an intention to evade payment of duty on raw materials in question and the circumstances of invocation of Section 11AC against the assessee cannot be faulted. Having rendered such a finding, the Tribunal proceeded to reduce the penalty to ₹ 1,00,000/-. In fact, no reasons have been assigned by the Tribunal for reducing the penalty. 6. The Hon ble Supreme Court in the case of Union of India v. Rajasthan Spinning and Weaving Mills reported in [(2009) 13 SCC 448 = 2009 (238) E.L.T. 3], considered the earlier decision of the Hon ble Supreme Court in the case of Union of India and Ors v. Dharamendra Textiles Processors Ors, repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 271(1)(c) of the Act, there is no necessity of mens rea being shown by the Revenue, however referring to the Explanation to Section 271(1)(c) penalty being a multiple liability, the bona fide of the conduct of the assessee necessarily assumes significant, even though willfulness of the assessee may not be a criteria, the conduct is to be considered. Thus, a mere fact that the addition in this case has been sustained by this Court by itself would not lead to the automatic application to Section 271(1) of the Act. 7. Further, in the recent decision of the Hon ble Supreme Court in Civil Appeal No. 9772 of 2013, dated 30-10-2013 (Mak Data P. Ltd. v. Commissioner of Income Tax-II), the Hon ble Supreme Court while considering the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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