TMI Blog2013 (10) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the matter once again for the simple reason that the show cause notice issued on 9-5-2006 makes no reference as to the satisfaction of the Adjudicating Authority as to the twin conditions being satisfied before imposing penalty under Section 11AC. Except for pointing out to the violation committed by the assessee resulting in the demand of duty and interest, as far as the levy of penalty is concerned, the show cause notice had called upon the assessee to reply as to why penalty could not be imposed under Section 11AC. Even though the first Appellate Authority stated that the Adjudicating Authority had found that the short levy had occurred on account of wilful suppression of material fact, we searched in vain of such an observation in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost in the value of the goods sent to the other unit. During the period 2003-2006, the assessee cleared SAC Zinc Anoda ZTL 700 to Western India Shipyard Ltd., Marmugoa without payment of duty of availing exemption Notification No. 82/84, dated 31-3-1984. However, they had not reversed 8%/10% of the total sale price of the exempted goods, as they had not maintained separate accounts for common inputs. When pointed out the assessee paid the duty along with interest. It was further noticed that the assessee cleared unwrought aluminium alloy ingots to their sister unit M/s. Sargam Matals Pvt. Ltd., Die Casting Division, 89, Old Mahabalipuram Road, Chennai from 13-7-2004 and they had not calculated the value of goods based on CAS-4 format. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules. 6. As regards the removal of goods to the sister concern without including overhead cost, the assessee stated that the same need not be included as per the principles of costing. The method of calculation done by the assessee was well within the knowledge of the Revenue as well as the decisions in this regard; consequently, there was no suppression of fraud played by the assessee. Referring to the decisions reported in 2003 (153) EL.T. 7 (S.C.) (AMCO Batteries Ltd. v. CCE) and 2005 (179) E.L.T. 21 (S.C.) (CCE, Mumbai v. Mahindra Mahindra Ltd.), the assessee submitted that the question of invoking of proviso to Section 11A(1) of the Central Excise Act did not arise. The assessee further pointed out that they had paid the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced the penalty to ₹ 70,000/- As against this, the assessee as well as the Revenue went on appeal before the Tribunal. 9. The Tribunal specifically pointed out that the assessee had not disputed the duty and interest liability, which had already been paid. In the circumstances, the Tribunal allowed the assessee s appeal, thereby cancelled the levy of penalty. As far as the Revenue s appeal is concerned, the Tribunal passed a separate order pointing out that neither the Revenue nor the assessee pointed out about the pendency of the Revenue s appeal. But nevertheless, it followed its order in the assessee s appeal, thereby rejected the Revenue s appeal as having become infructuous. Aggrieved by this, the Revenue has filed the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action that the Officer has to record on the willfulness of the conduct of the assessee with intention to evade payment of tax. 12. In the subsequent decision reported in (2009) 13 SCC 461 = 2009 (239) E.L.T. 385 - Commissioner of Central Excise, Pune v. SKF India Limited, after referring to the decision reported in (2009) 13 SCC 448 - Union of India v. Rajasthan Spinning and Weaving Mills, the Supreme Court once again considered the imposition of penalty. It observed that where there is an intentional, deliberate, deceitful means of wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or Rules made thereunder, with the intention to evade payment of duty, penal provisions stood attracted. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee resulting in the demand of duty and interest, as far as the levy of penalty is concerned, the show cause notice had called upon the assessee to reply as to why penalty could not be imposed under Section 11AC. Even though the first Appellate Authority stated that the Adjudicating Authority had found that the short levy had occurred on account of wilful suppression of material fact, we searched in vain of such an observation in the order of the Adjudicating Authority only to find that there is no discussion on this aspect. Thus, when facts are clear that there is no such allegation as to the wilfulness in the misstatement or suppression of facts with an intention to evade payment of duty, applying the above-said decisions of the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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