TMI Blog2009 (9) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... y upheld - 9 of 2006 - - - Dated:- 16-9-2009 - Deepak Gupta and V.K. Ahuja, JJ. Mr. Sandeep Sharma, Assistant Solicitor General of India, for the appellant. None, for the respondent. [Judgment per Deepak Gupta, J.]. - This appeal has been admitted on the following substantial questions of law:- "Whether interest and penalty is imposable even if C.E duty has been deposited by the assessee before Show Cause Notice in case where the said duties deposited not voluntarily but on detection by the department. " The facts of the case are that the assessee- M/s.Him Chemicals Fertilizers Limited, Village Maganpura, Nalagarh is engaged in the manufacture of fence fittings and scaffolding for which zinc metal and aluminum alloys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons relied upon therein, is not legally sustainable. Once there was requisite mens rea, which conferred jurisdiction to levy penalty, mere deposit of the amount of duty and interest by itself did not deprive the authority of jurisdiction to levy penalty, as the said deposit could not be conclusive of their being no intention to evade payment of duty or duty being short levied or for having not paid by reasons of fraud, collusion or any willful mis-statement or suppression of fact, or contravention of any of the provisions of this Act. We have considered rival contentions and perused the record and statutory provisions. Provisions of Section 11AC of the Act providing for penalty reads as under:- "11AC. Penalty for short-levy or non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect." A perusal of the above provision shows that the said provision incorporates liability to pay penalty in the situations mentioned therein. Once a case is covered by the situation mentioned in the Section, mere deposit prior to issuance of show cause notice under Section 11A of the Act will not necessarily negate the sit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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