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TMI Blog2010 (3) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... vade payment of duty absent. Impugned order reducing penalty sustainable. - E/436/2007 - A/151-152/2010-WZB/MUM/C-IV/SMB - Dated:- 3-3-2010 - Shri Ashok Jindal, Member (J) Cross Objection No. E/CO/119/2007 Shri P.K. Agarwal, SDR, for the Appellant. Shri Nagnath Mathdevru, Manager, for the Respondent. [Order]. - This appeal is filed by the Revenue against the dropping of the penalty by the Commissioner (Appeals). 2. The brief facts of the case are that the respondent was engaged in the manufacturing of excisable goods i.e. I.E. Engine Valve/Crank Pin. On the basis of some information, the respondent's premises were visited by officers of department and during the scrutiny of records as well as the stock Dosition, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri P.K. Agarwal, learned SDR appeared on behalf of the Revenue and submitted that it is well settled law that when the duty is confirmed, the assessee is liable to pay the mandatory penalty under Section 11AC and in this case, the respondent has suppressed and contravened the provisions of Central Excise Act by not including the amortization cost while determining the assessable value. Taking the Cenvat credit on the strength of Xerox copy of the invoice and on account of shortages of finished goods, these facts were suppressed by the respondent from the department, which makes the respondent liable to pay the penalty as suppression shows the intention of the respondent to evade the payment of duty. To support his contention, he placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellants produced zerox copies to the preventive officers because the original copies were not tracing. In fact in this case the original copies were with the accounts department and when the appellants find out the same have taken back the credit within a week period. Therefore, it cannot be said that the appellants have taken credit deliberately with intention. (iii) The department has not considered the fact that for such short quantity of shortages, there cannot be clandestine removal considering the volume of the work in the appellant's factory. It is the fact that for shortage the preventive officers have even not drawn the panchanama. There was no charge for clandestine removal for the shortages. 5. Heard both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the respondent to evade the duty. While confirming the penalty under Section 11AC, I have to consider whether there was any intention of the assessee to evade the payment of Central Excise duty. In the facts and circumstances of the case, I do not find there was any intention to evade payment of duty and in the absence of such intention, no penalty can be levied. From the above discussion, I find that there was no intention of the assessee to evade the duty although the respondent is not able to explain the discrepancies pointed out by the investigating party. Moreover, the Commissioner (Appeals) after considering these submissions reduced the penalty. I do not find any point to interfere with the impugned order, the same is uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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