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Commissioner of Central Excise, Goa Versus M/s. Sunrise Zinc Ltd.

2015 (8) TMI 896 - BOMBAY HIGH COURT

Penalty u/s 11AC - Evasion of duty - Duty on waste - Held that:- Where non-payment of duty is not with an intent to evade of payment then there can be no occasion to impose penalty under Section 11AC of the Act. In the present facts, the impugned order has recorded a finding of fact that the non-payment of duty on the goods by the respondent-Assessee was on account of bonafide understanding that the said goods are not chargeable to excise duty. Thus, the condition precedent for invoking Section .....

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u Plastics Work reported in [2009 (9) TMI 830 - BOMBAY HIGH COURT] and Rajasthan Spinning & Weaving Mills (2009 (5) TMI 15 - SUPREME COURT OF INDIA) followed - Decided against Revenue. - Excise Appeal No.8 OF 2008 - Dated:- 27-3-2015 - F. M. Reis & M. S. Sanklecha, JJ. For the Petitioner : Ms. S. Linhares, Advocate For the Respondent : Mr. R. Srivastava, Advocate JUDGMENT : This is an appeal under Section 35G of the Central Excise Act, 1944 (the Act) challenging the order dated 2/07/2007 pas .....

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y the facts leading to the present appeal are that on 18/02/1999 the Officers of Central Excise Department intercepted a tempo van bearing registration no.GJ/5U/675. On examination, it was found that the said van was loaded with 20 drums of chemicals under the brand name of DEHPA (spent) (hereinafter referred to as 'goods') which had been loaded from the factory of the respondent. However, the goods were not accompanied with any document evidencing the payment of central excise duty. On .....

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alled upon the respondent- Assessee to show cause as to; (a) why Central Excise duty of ₹ 2.44 lakhs on the 4000 kgs of the said goods being removed clandestinely in the said tempo should not be recovered under Section 11A of the Act? (b) to disallow and recover inadmissible modva credit availed amounting to ₹ 72,599/- under Rule 57U of the Central Excise Rules, 1944 (Rules), (c) to impose penalty under the provisions of Rules 57U and Rule 173Q read with Section 11AC of the Act, and; .....

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sides, they were under a bonafide belief that the said goods had become unserviceable being in nature of waste/sludge therefore, not dutiable. Thus non-payment of duty was on the basis of bonafide understanding that the said goods were waste. In these circumstances, the respondent-Assessee prayed that no penalty be imposed upon them. 6. The Commissioner of Central Excise by an order dated 13/02/2006 confirmed the show cause notice. However, the demand was reduced from ₹ 2.44 lakhs to ͅ .....

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had cleared the same on commercial invoice. This clearance of the goods without payment of duty was on the basis of a bonafide belief that the said goods were not excisable. Besides, the impugned order also recorded the fact that as the entire amount of duty and interest had been paid before the issue of show cause notice no occasion to impose any penalty could arise. Thus the Tribunal by the impugned order set aside the penalty imposed upon the respondent-Assessee. Being aggrieved on dropping .....

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the decision of the Supreme Court in the case of Union of India V/s. Rajasthan Spinning & Weaving Mills reported in 2009 (238) E.L.T. 3(S.C.). According to her there is no discretion left with the authorities under the Act to waive penalty once Section 11AC of the Act has been invoked. She further submits that merely because the duty along with interest has been paid before the issue of show cause notice penalty does not stand automatically waived. In support of the above she relied upon the .....

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eme Court in Rajasthan Spinning & Weaving Mills (supra) to point out that provisions of Section 11AC of the Act would be invoked only where duty of excise has not been paid by reason of fraud, collusion and willful misstatement or suppression of facts. In this case, the impugned order has recorded that the non-payment of duty arose on account of bonafide belief on the part of the respondent that no duty is payable on the said goods. Consequently, mandatory penalty under Section 11AC of the A .....

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