9911796707
TMI Blog2021 (3) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty and paid the same along with applicable interest. This fact has already been recorded by the adjudicating authority in the Order-in-Original. The Appellant Company filed appeal before the lower appellate authority contesting penalty imposed under Section 11AC of the Central Excise Act, 1944. However, the Commissioner (Appeals) rejected the appeal. Hence the present appeal before the Tribunal. 2. The Learned Representative appearing on behalf of the Appellant Company, submits that the allegation that COCO expenses collected at the time of actual clearances of the product from COCO outlet and not included in the transaction value is totally baseless. No amount has been collected separately through invoices for COCO expenses fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Also relying on the judgement of Hon'ble Surpeme Court in the case of Union of India Vs. Dharmendra Textile Processors [2008 (231) ELT 3 (SC) wherein it has been discussed and observed that there is no scope for discretion under Section 11AC ibid and the levy of penalty is a mandatory penalty. Penalty under Section 11AC of the said Act is imsable in the instant case." I find that the Hon'ble Supreme Court in the case of Rajasthan Spinning & Weaving Mills (cited supra) have examined the decision of Dharmendra Textile Processors (supra). In this regard, the relevant paragraphs of the said judgment are reproduced below : "20. At this stage, we need to examine the recent decision of this Court in Dharamendra Textile (supra). In almost eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee on the other hand referred to Section 271(1)(c) of the Income Tax Act, 1961 (in short the IT Act') taking the stand that Section 11AC of the Act is identically worded and in a given case it was open to the assessing officer not to impose any penalty. The Division Bench made reference to Rule 96ZQ and Rule 96ZO of the Central Excise Rules, 1944 (in short the "Rules') and a decision of this Court in Chairman, SEBI v. Shriram Mutual Fund & Anr. [2006 (5) SCC 361] and was of the view that the basic scheme for imposition of penalty under section 271(1)(c) of IT Act, Section 11AC of the Act and Rule 96ZQ(5) of the Rules is common. According to the Division Bench the correct position in law was laid down in Chairman, SEBI's case (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue as follows : "5. Mr. Chandrashekharan, Additional Solicitor General submitted that in Rules 96ZQ and 96ZO there is no reference to any mens rea as in section 11AC where mens rea is prescribed statutorily. This is clear from the extended period of limitation permissible under Section 11A of the Act. It is in essence submitted that the penalty is for statutory offence. It is pointed out that the proviso to Section 11A deals with the time for initiation of action. Section 11AC is only a mechanism for computation and the quantum of penalty. It is stated that the consequences of fraud etc. relate to the extended period of limitation and the onus is on the revenue to establish that the extended period of limitation is applicable. Once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Dharamendra Textile is only in so far as Section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision." 6. The Hon'ble Supreme Court has observed that when there is no ingredients as mentioned under Section 11AC and there was an intention to evade duty, penalty under Section 11AC is imposable irrespective of payment of duty and interest. 7. In the instant case, I do not find any ingredient to evade payment of duty and all the transactions were carried out by the Department. Circumstances have to be kept in mind, which resulted in short payment of duty by the appellant. It has also been contend ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
