TMI Blog2015 (11) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. However, the assessee will be liable to penalty under Rule 27 of the Act for an amount of ₹ 5000/-. Further, I hold that the SMB ruling in the case of Shivam Pressings (2015 (7) TMI 581 - CESTAT MUMBAI) as per incurium as the same has been passed ignoring the condition precedent contained in the Rule 25 itself. - Decided in favour of assessee. - Appeal No. E/89903/13 - - - Dated:- 7-4-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri N.N. Prabhudesai, Supdt. (AR) ORDER Per: Shri Anil Choudhary The appellant, M/s Hoya Lens India Pvt. Ltd., is in appeal against Order-in-Original No. Belapur/112/Bel-I/R-IV/COMMR/KA/2013-14 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of removal of goods from the factory without utilizing the CENVAT Credit till the date of payment of outstanding duty amount along with interest, in terms of Rule 8(3A) of the Central Excise Rules, 2002. Accordingly, vide show-cause notice dated 4.6.2013, the appellant was required to show cause as to why the goods valued at ₹ 8,39,16,190/- removed in violation of sub-rule 3A of Rule 8 of Central Excise Rules, 2002, though not available for seizure, should not be held as liable for confiscation under the provisions of Rule 5 of the Central Excise Rules, 2002 and as to why not penalty be imposed under Rule 25/27 of the Central Excise Rules, 2002. The appellant contested the show-cause notice by filing reply stating therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 read with Rule 25 of the Central Excise Rules. 2.1 Being aggrieved, the appellant-assessee is in appeal before this Tribunal. 3. The learned Counsel for the appellant states that the impugned order is bad as the same has been passed without considering and appreciating the submissions made, provisions of law and the existing ruling by the Tribunal and High Courts. It is further stated that the appellant have suo motu paid interest on the amount of duty paid through PLA and also on the amount of duty paid by debit of the CENVAT Credit account. Further, the appellant had paid duty and the interest suo motu and had also filed the returns although after a delay of few days from the due date. 3.1 It is further urged that from a plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non levy of duty in certain cases. It says that where the duty of excise have not been levied or paid or have been short levied or short paid or erroneously refunded by reasons of fraud, collusion of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty shall also be liable to pay a penalty equal to the duty so determined. For the purpose of invoking section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short levied or short paid or the refund is erroneously granted by reasons of fraud, collusion or any willful mis-statement or suppression of facts. If these ingredients are not present, penalty under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty under Rule 25 read with Section 11AC of the Act, it was held that the requirement of Section 11AC have to be satisfied while imposing penalty under Rule 25. If there is no fraud, collusion or any willful mis-statement or suppression of facts or contravention of the provisions of Act and Rules with intention to evade payment of duty, penalty under Rule 25 cannot be imposed. It was further held that the assessee is liable only for penalty under Rule 27 of the Rules. Accordingly, the appellant prays for setting aside the penalty under Rule 25 of the Rules. 4. The learned AR relies on the impugned order and further relies on the Single Member Bench ruling of this Tribunal being final order No. A/460/15/SMB dated 10.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in the ruling of the Hon'ble Gujarat High Court in the case of Saurashtra Cement Ltd. (supra) and Harish Silk Industries (supra), wherein it was held that penalty under Rule 25 can be imposed only on satisfaction of pre-condition, the condition laid down for the penalty under Section 11AC of the Act. As the return (TR-6) was filed, is recorded in the impugned order, the ingredients of Section 11AC are absent. Accordingly, I set aside the penalty imposed under Rule 25 of Central Excise Rules. However, the assessee will be liable to penalty under Rule 27 of the Act for an amount of ₹ 5000/-. Further, I hold that the SMB ruling in the case of Shivam Pressings (supra) as per incurium as the same has been passed ignoring the condi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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