2004 (4) TMI 101

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..... the assessee that since they have deposited the duty amount before issue of show cause notice, penalty under Section 11AC cannot be imposed. In support of the above contention, reliance was placed on the following decisions of the Tribunal :- (1) Ashok Leyland Ltd. v. CCE, Chennai [2003 (156) E.L.T. 995 (Tribunal) = 2003 (55) RLT 816 (CEGAT-Chennai)] (2) Rashtriya Ispat Nigam Ltd. v. CCE [2003 (161) E.L.T. 285 (Tribunal-Bang.)] 2. The Revenue, on the other hand, submitted that when fraud, collusion or wilful misstatement or suppression of facts, etc. are alleged against the assessee, penalty under Section 11AC can be imposed irrespective of the fact that the assessee has deposited the duty before issue of show cause notice. In sup .....

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..... t in terms of Section 11AB of the Central Excise Act, 1944. She submitted that since the disputed duty amount has already been deposited by the party even before the issue of show cause notice, imposition of penalty is not justified. In support of her contention, she referred to the decision of the Tribunal in the case of Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam, reported in 2003 (54) RLT 317 (CEGAT-Ban.) 3. Taking into consideration of the facts and circumstances of the case and following the ratio of the aforesaid decision of the Tribunal, we accept the contention of the party. Accordingly, the appeal is allowed with consequential relief." 2. Feeling aggrieved, Department has filed this petition under Section 35H of the Act se .....

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..... t any justifiable reason. We find that Tribunal has in fact given a reason i.e. the disputed duty has been paid by the party even before the issue of show cause notice and this would show that there was no question of any fraud, misrepresentation or suppression of facts. In fact, the Tribunal in Rashtriya Ispat Nigam Ltd.'s case, held that where assessee deposits the duty even prior to the issue of show cause notice, penalty should not be imposed and interest should not be levied. The Supreme Court has rejected the appeal filed against the said order. Therefore, we find that order of the Tribunal is a reasoned order though brief and no question of law arises in regard to the said order. Petition is therefore dismissed." 5. The ld. Departm .....

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