TMI Blog2018 (10) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... d order of Commissioner (Appeals) - appeal dismissed - decided against Revenue. - APPEAL No. E/51372/2014-EX[DB] - A/72152/2018-EX[DB] - Dated:- 11-9-2018 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Pawan Kumar Singh (Supdt.) AR for Appellant Ms. Sneha Ghosh (Advocate) for Respondent ORDER Per: Archana Wadhwa Being aggrieved with that part of the impugned order vide which Commissioner (Appeals) has set aside the penalty imposed upon the appellant while dropping a part of the demand and confirming another part, on the ground that there was no mala fide on the part of the assessee, Revenue has filed the present appeal. 2. The issue involved before the Lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (CESTAT SMB); CCE versus N K Jatwani Co. (2009) 23 STT 252 (CESTAT SMB); if there no intention to evade duty/tax, reduction/waiver in penalty is justified; Moreover, the Hon ble Supreme Court in Pratibha Processors V/s Union of India (1996) 11 SCC 101 observed that:- Penalty is ordinarily levied on the assessee for some contumacious conduct or for a deliberate violation of the provisions of the particular statute . Hon ble Supreme Court in the case of Tecumseh Products India Ltd. V/s CCE, 2004 (167) ELT 498 (S.C.), held that in the circumstances where there was bona fide dispute between the parties in regard to the legal interpretation of law, penalty cannot be imposed on appellant. The above referred case laws are app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. No enquiry was transferred to Guwahati. No statement of whole sale dealer/distributor or any retailer, who deals in the goods were recorded to prove that the appellant was receiving amounts, over above the declared price. No instance of the appellant receiving any amount under grab of extra freight or under any other head of the balance sheet was mentioned in the impugned order. Further if the department was so sure about the offence, being committed by the appellant, why the goods were not confiscated. In absence of these, the mensrea cannot be proved. Therefore in absence of mensrea, I do not affirm the imposition of penalty equal to C.Ex duty under Rule 25 of the C.Ex Rules, 2002. 3. As against the above finding of the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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