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2019 (5) TMI 711

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..... as the 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 Per: S.S GARG The present appeal is directed against the impugned order .....

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..... h 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 the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the bi .....

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..... ble 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. Commissioner of C.Ex., Thane-II - 2017 (354) ELT 553 (Tri. Mum.). Hindustan Steel Ltd. v. State of Orissa - 1978 (2) ELT (J 159) (SC). Amrit Foods v. Commissioner of C.Ex., U.P. .....

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..... aterial 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, SCN was also issued and in reply to the SCN, the appellant produced the proof of export to the extent of ₹ 54,43,820/- which was subsequently dropped by the Asst. Commissioner. Thereafter, the original authority confirmed the demand of ₹ 21,63,232/- along with penalty of ₹ 21,63,232/- along with interest in the Order-in-Original. Both the authorities have im .....

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