TMI Blog2023 (5) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 (7) TMI 183 - HIGH COURT BOMBAY ]. There are no merit in the appeal filed by the Revenue for imposition of penalty under Section 11AC of the Central Excise Act, 1944 - appeal of Revenue dismissed. - Excise Appeal No. 1930 of 2012 - FINAL ORDER NO. 85485/2023 - Dated:- 16-3-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) And HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Appellant Ms. Lalita Phadke, Advocate, for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal has been filed by Revenue against Order-in- Original No. 23/AT(23)COMMR/RGD/12-13 dated 17.09.2012 passed by the Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I do not impose redemption fine under section 34 ibid as proposed and as discussed above. (v) I impose a penalty of Rs 1,00,000.00(Rupees one lakh only) on Shri Nirmal Kumar Chaudhari, Vice-President-Operations, of the noticee under rule 26 of the Central Excise Rules, 2002 on the grounds discussed above. 2.1 Revenue has in their appeal challenged this order only to the extent of penalty imposed in terms of Rule 25(1)(d) of Central Excise Rules, 2002. According to the Revenue penalty equivalent to the duty should have been imposed on the appellant in terms of Section 11AC of Central Excise Act, 1944. Following has been stated as ground of appeal, as stated in the review order:- 4.2 Section 11AC of the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lloyds Steel Industries Ltd in terms of Notification No. 43/2001-C.E. (N.T.) dated 26.06.2001 were not used by them for the manufacture of finished goods meant for export but were used by them for the manufacture of finished goods cleared in the local market for home consumption. Thus it is a clear cut case of mis- statement/suppression of facts with an intent to evade duty. Further, the Commissioner has given a finding in para 41 of the Order that there is an obvious intent to evade duty on the part of 'Zenith', when they have procured duty free raw materials for manufacture of finished goods meant for export and diverted the finished goods to local market instead of the intended purpose of export 4.4 The ingredients laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rate of duty for Manufacture of Excisable Goods) Rules, 2001 and Notification No. 43/2001 CE (N.T) dated 26.06.2001 with intent to evade payment of duty. 4.7 The Commissioner has failed to appreciate the fact that Central Excise (Removal of Goods at Concessional Rate of duty for Manufacture of Excisable Goods) Rules, 2001 was framed under Section 37 of the Central Excise Act, 1944 and Notification No. 43/ 2001 CE (N.T) dated 26.06.2001 was issued under Rule 19 of the Central Excise Rules, 2002. 2.2 We have heard Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Revenue and Ms. Lalita Phadke, Advocate for the respondent. 3.1 In the present case, counsel for the respondent has challenged the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence between the duty leviable on such goods but for the exemption and that already paid, if any, at the time of removal from the factory of the manufacturer of the subject goods, along with interest and the provisions of section 11A and section 11AB of the Central Excise Act, 1944 (1 of 1944) shall apply mutatis mutandis for effecting such recoveries. These rules do not provide for any penal action against the violators but simply requires recovery of the duty along with interest. The operative parts of the notice also categorically propose demand for violation of the provisions of Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. Besides, rule 6 of the said edict also requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,96,881/- in respect of that quantity of fuel, which the appellant has not been able to show as having been utilized in terms of notification or Rules, 2001. He has also imposed penalty of identical amount on the respondents. The respondents have filed cross-objections, which are required to be taken as cross appeals, challenging imposition of penalties of Rs. 2,96,881/-. It stands contended before us that appellants have not disputed the duty demand so as to avoid litigation. However, penalty imposed upon them is not justified inasmuch as the Rule 6 of Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 lays down that where subject goods are not used for intended purposes, the man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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