TMI Blog2018 (5) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... evade the duty. In identical situation, where the assessee had declared their clearances and liability of duty clearly, this Tribunal in the case of Saurashtra Cement Ltd [2008 (1) TMI 595 - CESTAT, AHMEDABAD] has held that penalty under Rule 25 read with Section 11AC of the Act is not invocable and also held that such contravention would attract penal provisions of Rule 27 of the Central Excise Rules, 2002 which provides for maximum penalty of ₹ 5000/-. Penalty is reduced to ₹ 5000/- for each of the default - confirmation of demand of duty and interest thereon is upheld - appeal allowed in part. - E/60431/2016-EX[SM] - FINAL ORDER NO. 61958/2018 - Dated:- 15-3-2018 - Mr. Devender Singh, Member (Technical) Prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate for the appellants, at the outset, submits that they have never disputed the liability of duty and interest thereon and they have already paid the duty of ₹ 9,83,868/-. He also submits that they have filed ER-1 return for both the months in time and all the declarations in the ER-1 return were made correctly and they had always admitted their liability to pay the duty. He argues that the correct declaration shows that they had no intention to evade the duty. He mentions that there was a labour trouble in their factory and they had financial difficulties due to which duty could not be paid in time. He relies on the following case laws in support of his contentions:- (i) Saurashtra Cement Ltd vs. CCE 2008 (225) ELT 395 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns, which were filed on time. Due to admitted financial difficulties and labour trouble in their factory, the appellants could not pay the admitted duty liability. I also find that in the show cause notice, there is no express allegation of fraud, suppression or mis-declaration or deliberate attempt to evade the duty. In the case of CCE vs Pepsi Foods Ltd. (supra), the Hon ble Supreme Court has held as below: 20 . It is well settled that when the statutes create an offence and an ingredient of the offence is a deliberate attempt to evade duty either by fraud or misrepresentation, the statute requires mens rea as a necessary constituent of such an offence. But when factually no fraud or suppression or misstatement is alleged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that the manufacturer does not account for any excisable goods manufactured by him. Admittedly, the said clause does not stand contravened inasmuch as the goods were duly reflected in the statutory records. Similarly, clause (c) is not contravened inasmuch as the appellant has not manufactured goods without applying for registration. Clause (d) refers to contravention of any of the provisions of the rules with intent to evade payment of duty (emphasis provided). Admittedly the excisable goods were entered in records, cleared on Central Excise invoices and duty was also paid subsequently, though belatedly along with interest. As such, the said clause (d) is also not attracted. In such a scenario, the invocation of Rule 25 for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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