TMI Blog2015 (9) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, even if the duty demand is confirmed, the Tribunal's direction deleting penalty is not required to be interfered with by us in our further appellate jurisdiction. - Once there was a scope for entertaining a doubt, and there is no willful mis-statement or suppression of facts, then, penalty is not called for. The imposition is only in the event the ingredients necessary to be satisfied are attracted and so satisfied - Decided against Revenue. - Central Excise Appeal No. 65 of 2005 - - - Dated:- 11-3-2015 - S.C. Dharmadhikari Sunil P. Deshmukh, JJ. For the Petitioner : Mr. A.S. Rao a/w. Mr.S.D. Bhosale, Advocate For the Respondent : Ms. Anjali Hirawat a/w. Mr. Jas Sanghavi Ms. Niyati Hakani i/b. M/s. PDS Legal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on sustainability of penalty which was imposed by the Order-in-Original, but that came to be set aside by the Tribunal. 3 Mr. A.S. Rao appearing on behalf of the Revenue in support of this Appeal would submit that the Tribunal has failed to take note of the clear language of Section 11AC of the Central Excise Act, 1944, as applicable, at the relevant time. The language admits of no construction other than a mandate to impose penalty. Thus, this provision being mandatory, the Tribunal should have sustained the imposition of penalty which also should have been sustained because there was nothing unclear or unsettled about the legal position. The assessee knew that it had to take into account the amount received from M/s.Tata Engineerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Tribunal in the case of Star Glass Works Vs. Commissioner of Central Excise, Mumbai 2003(162)E.L.T.367(Tri.-Mumbai) . She submits that this order of the Tribunal has been affirmed by the Hon'ble the Supreme Court of India. She, therefore, submits that the Appeal be dismissed. 6 The provisions enabling imposition of penalty are to be found in Section 11AC of the Central Excise Act, 1944. At the relevant time that section provided for penalty for short levy or non levy of duty in certain cases or in cases where the duty has been short paid or erroneously refunded and all this because of fraud, collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of the Central Excise Act or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also agreed between the parties that for development of moulds for Assembly Rear Bumper, 50% of the costs of moulds was to be borne by M/s.Telco and 50% was to be absorbed by the assessee. The portion of development charges for moulds was borne by the assessee. This portion was withdrawn by the assessee by way of issuance of Debit Note. The allegations in the show cause notice are that the amounts recovered as indicated in Annexure B to the show cause notice constitute an additional consideration. It is, thus, required to be added in the sale price to arrive at the assessable value as per Rule 5 of the Central Excise Valuation Rules, 1975. It was alleged in the show cause notice that the moulds developed by M/s.TELCO, are the sole pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily go in assessing the duty payable on the finished product under Excise Law. The assessee contended that until this position was settled, they acted in terms of CESTAT's earlier order. In paragraph 48, the Order-in-original only reciles as to how the assessee could not substantiate the claim that the mould development charges were amortised. Therefore, it relied upon the inquiries and investigations and the statements of the executives and officials of the assessees and M/s. TELCO recorded during the course of the same. However, we do not find anything in the Order-inoriginal barring a statement that the assessee have not amortised the costs of moulds recorded from M/s. TELCO, and this itself tantamounts to misrepresentation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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