TMI Blog2016 (6) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... HIGH COURT] and in the case of Prince Multiplast Pvt. Ltd. v. Union of India [2012 (5) TMI 474 - GUJARAT HIGH COURT] , which in the considered view of the Court merit acceptance. Therefore, the court is unable to find any infirmity in the impugned order of the CESTAT. - Decided against revenue - C.E.A.C. No. 7 of 2016 and CM Nos. 21897 of 2016 (for exemption) & 21896 of 2016 (for stay) - - - Dated:- 31-5-2016 - S. MURALIDHAR VIBHU BAKHRU JJ. For the Appellant: Mr. Rahul Kaushik, Senior Standing counsel. For the Respondents: Mr. Abhishek Anand, Mr. M.P. Devnath and Mr. Yogendra Aldak, Advocates. O R D E R Dr. S. Muralidhar, J.: CM No. 21897/2016 (for exemption) 1. Exemption allowed subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and penalty. (1) Subject to the provisions of section 11AC of the Act, if any producer manufacturer, registered person of a warehouse or an importer who issues an invoice on which CENVAT credit can be taken or a registered dealer, - (a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods produced or Manufactured or stored by him; or (c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or (d) contravenes any of the provisions of these rules or the notifications issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictive interpretation on Rule 25 of the CE Rules. He also pointed out that against the Full Bench decision of the CESTAT in Commissioner of Central Excise, Delhi v. Ganpati Rolling Pvt. Ltd. (supra), an appeal was filed in this Court which was dismissed as withdrawn on 24th February 2015 in CEAC No. 59-60/2014). According to him, there was no need to read the requirement of with intent to evade payment of duty occurring in Rule 25(1)(d) of the CE Rules into Rule 25 (1) (a) to (c). Also according to him the ingredients of Section 11AC of the CE Act were not required to be satisfied in order to proceed with confiscation and levy of penalty under Rule 25 of the CE Rules. 8. Mr Abhishek Anand, learned counsel for the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by reasons of fraud, collusion or any wilful misstatement or suppression of facts, or contravention 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 as determined under sub-section (2) of Section 11AC, 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 wilful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is conditional upon . Rule 173Q opens with the words subject to the provisions contained in Section 11AC of the Act and subrule (4) of Rule 57-I and sub-rule (6) of Rule 57-U . Thus, confiscation of goods and levy of penalty under Rule 173Q of the Rules is conditional upon the requirements of Section 11AC and sub-rule (4) of Rule57-I and sub-rule (6) of Rule 57-U being satisfied. Thus, the words subject to used in the said rule express a limitation on the power to confiscate goods and levy of penalty under the said rule. 12. The Court finds that the Full Bench of the CESTAT which decided the Respondent's case in 2014 relied on the decision of the Punjab Haryana High Court in S.K. Sacks (P) Ltd. v. Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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