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TMI Blog2015 (11) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... ER PER: ASHOK JINDAL The appellant is in appeal against the impugned order imposing penalty under section 11AC of Central Excise Act ,1944. 2. The facts of the case are that the appellant was availing SSI exemption under Notification No.8/03 dt.1.3.2003. On 14.03.2005, a team of Central Excise officers visited the factory premises as well as head office of the appellant and found that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per section 11A (2B) of the Act, the show cause notice is not required to be issued and dropped the penalty. Against that order, the Revenue preferred an appeal before the Commissioner (Appeals) who examined the provisions of section 11A (2B) of the Act. The Commissioner (Appeals) observed that the provisions of section (2B) shall not be applicable in cases of suppressions, and fraud, etc. Rely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for cenvat credit on the inputs which have gone into the manufacture of final products. If it was in the knowledge of the appellant that they have exceeded the exemption limit, they would have taken registration and availed credit on the inputs. Cenvat credit available with the appellant during the impugned period was more than the duty demand. Therefore, inference cannot be drawn that they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of suppression of facts and if the departmental officers did not visit the factory premises of the appellant, they could not unearth non payment of duty by the appellant during the impugned period. Payment of duty before issuance of show cause notice cannot be the defence for non imposition of penalty as held by the Supreme Court in the case of Rajasthan Spinning & Weaving Mills. He also relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, by suppressing the facts, the appellant was not going to get any gain. In the circumstances, I find that it was only a mistake of the appellant of not paying duty during the relevant period. Accordingly, I hold that the charge of suppression against the appellant is not sustainable. As the charge of suppression is not sustainable, consequently, mandatory penalty under section 11AC is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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