TMI Blog2023 (9) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Further, I observe that the Noticee have kept the department informed of all the facts. In view of the above facts, the Noticee are not liable to penalty under Rule 25(1)(a), 25(1)(d) and 27 of the Rules. I observe that recovering or erroneous refund alongwith interst under Section 11AB of the Act, shall meet the end of justice. It is also a fact that the appellant has applied for the fixation of special rate vide his application dated 27.05.2008 whereas the revenue has approved the special rate after more than one and half year which has caused loss to the respondent and they had to refund the amount with interest which is appropriated in the impugned order. There are no infirmity in the impugned order passed by the Ld. Commissioner - appeal of Revenue dismissed. - HON BLE Mr. S. S. GARG, MEMBER (JUDICIAL) And HON BLE Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Aneesh Deewan, AR for the Appellant Dr. A. S. Gill, Advocate Authorised Representative for the Respondent ORDER Per : S. S. GARG The present appeal has been filed by the Revenue assailing the impugned order dated 27.11.2010 passed by the Ld. Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. The adjudicating authority did not impose any penalty under Section 11AC of the Central Excise Act, 1944 or Rules 25 and 27 of the Central Excise Rules, 2002. Hence, the department has filed the present appeal. 3. Heard both the parties and perused the records. 4. Ld. DR appearing for the Revenue submitted that the impugned order dropping the penalties under Rule 25 and 27 of the Central Excise Rules, 2002 is not sustainable in law. He further submitted that the adjudicating authority has held in para 12 of the order that exemption Notifications including the amending Notifications are effective prospectively only unless it is specifically mentioned in the relevant Notification about its retrospective effect as provided under sub section 5 of Section 5A of the Central Excise Act, 1944. He further submitted that, in the present case, the Respondent has availed the benefit of value addition of 75% on Cement as well as Clinker w.e.f. 1.4.2008 vide Notification No. 34/2008-CE dated 10.6.2008 when the said items were manufactured from inputs lime stone and gypsum. He also submits that there was no mention in the Notification about the effectiveness of the Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent has justified the impugned order and submitted that the Ld. Commissioner has not imposed any penalty under rule 25 and 27 of the Rules, 2002 by giving detailed reasons in Para 19 of the impugned order wherein the Ld. Commissioner has observed that the respondent has duly informed the department before availing the benefit under the said notification. He further submitted that the Ld. Commissioner has observed in Para 19 of the impugned order that perusal of the record shows that the Respondent acted under a bonafide mistake and had informed the department about their intention to take refund vide their letter dated 23.06.2008 and again on 19.02.2009. He further submitted that in the impugned order, the Ld. Commissioner has observed the fact that when the respondent has filed application on 27.05.2008 then as per that condition, the competent authority was required to fix special rate within six months of such application. He also submitted that vide Notification No. 34/2008, the period of six months to fix the special rate was reduced to three months, but in the case of the respondent, special rate was fixed only on 12.08.2009 after the delay of more than one yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or [rupees two thousand], whichever is greater. RULE 27. General penalty. A breach of these rules shall, where no other penalty is provided herein or in the Act, be punishable with a penalty which may extend to five thousand rupees and with confiscation of the goods in respect of which the offence is committed. 10. Further, we find that the revenue in the present appeal is only aggrieved by non-imposition of penalty under the above said rules. Here, we note that the penal provisions under Rule 25(1) of the Central Excise Rules, 2002 are subject to Section 11AC of the Central Excise Act, 1944 which shows that penalty is imposable if there is intention to evade payment of duty as mens rea is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese Notifications will be effective retrospectively. But the facts on record indicate that their act was based upon bonafide mistake. The Noticee had informed the department about their intention to take refund vide their letter dated 23.06.2008 and again intimated the department about it vide their letter dated 19.02 2009. The Noticee in their reply have referred to Trade Notice No. 07/2008 dated 07.11.2008 where under clarification on the retrospective application of the said amendment was given. In the circumstances of the case where there had been reasonable scope of doubt in the interpretation of vires of amending Notification, malafide of the Noticee are not otherwise established. There is nothing on record which may warrant invocation of the provisions of Section 11AC of the Act. Further, I observe that the Noticee have kept the department informed of all the facts. In view of the above facts, the Noticee are not liable to penalty under Rule 25(1)(a), 25(1)(d) and 27 of the Rules. I observe that recovering or erroneous refund alongwith interst under Section 11AB of the Act, shall meet the end of justice. 13. It is also a fact that the appellant has applied for the fixa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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