TMI Blog2019 (5) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... he ingredients required for imposition of penalty such as fraud, wilful mis-statement, collusion or suppression of fact with intent to evade payment of duty is absent in the present case. Penalty u/s 11AC - HELD THAT:- In the present case, the provisions of Section 11AC have not been complied with and in the absence of which imposition of penalty under Section 11AC is not sustainable in law - penalty set aside. Appeal allowed - decided in favor of appellant. - E/21904/2018-SM - Final Order No. 20407/2019 - Dated:- 9-5-2019 - SHRI S.S GARG, JUDICIAL MEMBER Mr. Vivek Sharma, Advocate For the Appellant Mr. K. Murali, Superintendent, AR For the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02-CE dated 01.03.2006. The Assistant Commissioner confirmed the demand of ₹ 21,63,232/- along with penalty of ₹ 21,63,232/- for which the appellant has failed to submit the proof of export. Further, the Learned Asst. Commissioner has appropriated the duty along with interest as paid by the appellant amounting to ₹ 21,63,232/- and ₹ 8,13,146/-. Aggrieved by the imposition of penalty imposed by the Original Authority, the appellant filed appeal before the Commissioner who vide the impugned order has confirmed the imposition of penalty of ₹ 21,63,232/-. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned Counsel for the appellants submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained. He further submitted that as per the SEZ Act and the Rules if the appellant fails to furnish the proof of export, they are liable to pay duty and in the present case, the appellants have already paid the duty along with interest wherever the proof of export are not submitted. He further submitted that this issue has been considered in various decisions of the Tribunal and it has been consistently held that if the conditions of Section 11AC are not fulfilled then penalty should not be imposed. In support of this submission, the appellant has relied upon the following decisions: Crompton Greaves Ltd. v. Commissioner of C.Ex., Aurangabad 2015 (329) ELT 600 (SC). Safex Fire Services Ltd. v. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fended the impugned order and submitted that the appellant has failed to submit proof of export and therefore he has concealed the material facts from the Department and therefore, the penalty imposed under Section 11AC read with Rule 25 of the Central Excise Rules, 2002 is justified. 6. After considering the submissions of both the parties and perusal of the material on record, I find that during the scrutiny of the ER-1 Returns, the Department came to know that the appellants have cleared the goods to SEZ but have not produced the proof of export within the stipulated time. Thereafter, the appellant was asked to submit the proof of export in regard to clearance made to SEZ units during the period in dispute and thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Apex Court in the case of UOI v. M/s Dharmendra Textile Processors 2008 (231) ELT 3 (SC) and UOI v. Rajasthan Spinning Weaving Mills 2009 (238) ELT 3 (SC). In reply to this argument, the Learned Counsel submitted that the Hon ble Apex Court has clarified in the case of Rajasthan Spinning and Weaving Mills cited supra that for imposition of penalty under Section 11AC, there has to be an act of deliberate deception by the assessee with intent to evade payment of duty by adopting any of the means mentioned in the section. Further, I find that in the present case, the provisions of Section 11AC have not been complied with and in the absence of which imposition of penalty under Section 11AC is not sustainable in law and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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