TMI Blog2018 (5) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... not determinative and a relevant factor for deciding whether or not penalty should be imposed under Section 11AC of the Excise Act. This issue is to be decided having regard to the satisfaction or non-satisfaction of the conditions stipulated in Section 11AC of the Act. The appellant does not dispute and does not challenge the conditions mentioned in Section 11AC of the Act were satisfied as the appellant does not contest and submit that fraud, misrepresentation or suppression of facts in contravention of provisions of the Act or the Rules were missing and absent - also, appellant had not paid 25% of the penalty within the stipulated time of 30 days. Therefore, 100% penalty has to be paid by the appellant. Appeal dismissed - Decided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 4510 kg of S.S. ingots was found on comparison with the balance shown in the books. Two concerns, namely, M/s Shree Shyam Cutter and M/s Shree Ganesh Cutter situated in Wazirpur industrial area were also subjected to search on the next date, i.e. 20th November, 2005 and 76.10 M.T. and 120.50 M.T. S.S. flats were found lying in the said premises. M/s Shree Shyam Cutter and M/s Shree Ganesh Cutter could not explain lawful possession of S.S. flats found in their premises. The Director of appellant Mr. Ram Kumar Aggarwal in his statement recorded on 20th November, 2005 had admitted that the goods found in the premises of M/s Shree Shyam Cutter and M/s Shree Ganesh Cutter belonged to them and they were cleared without payment of duty. No inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of search and material physically found which corroborates and confirms the statements made. 7. It is accepted and admitted that the appellant herein did not pay the penalty imposed under Section 11AC of the Central Excise Act. Mere payment of differential duty, i.e. duty on the goods S.S. ingots found short by 4510 kg and S.S. flats found in the premises of M/s Shree Shyam Cutter and M/s Shree Ganesh Cutter would not matter once the conditions for imposition of penalty under Section 11AC was satisfied. This is clear ratio of Rajasthan Spinning and Weaving Mills (supra), wherein it has been held as under: 2. What are the conditions and the circumstances that would attract the imposition of penalty under Section 11AC of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for penalty, the conditions for which are clearly spelled out in Section 11AC of the Act. XXXX XXXX 30. At this stage, we need to examine the recent decision of this Court in Dharmendra Textile. In almost every case relating to penalty, the decision is referred to on behalf of the Revenue as if it laid down that in every case of non-payment or short-payment of duty the penalty clause would automatically get attracted an the Authority had no discretion in the matter. One of us (Aftab Alam, J.) was a party to the decision in Dharmendra Textile and we see no reason to understand or read that decision in that manner. XXXX XXXX 34. The decision in Dharmendra Textile must, therefore, be understood to mean that though the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Processors, 2008 (231) ELT 3 (SC) holding that once the conditions mentioned in Section 11AC were fulfilled, then there is no discretion left with the authority concerned to reduce the penalty to an amount less than the duty determined. This decision again highlights that the conditions mentioned in Section 11AC should be first fulfilled. 10. The appellant does not dispute and does not challenge the conditions mentioned in Section 11AC of the Act were satisfied as the appellant does not contest and submit that fraud, misrepresentation or suppression of facts in contravention of provisions of the Act or the Rules were missing and absent. The facts found are to the contrary and compelling. 11. Learned counsel for the appellant has rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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