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TMI Blog2009 (11) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of fraud, wilful suppression, collusion or misstatement. Though there is mention of ‘intention to evade duty’ by the noticee, there is no specific allegation as to whether they contravened any specific provision of law with such intention. In this scenario, applicability of sub-rule (2) of Rule 15 is ruled out. Only sub-rule (1) can be applied to the facts of this case. in this situation, the penalty cannot exceed the amount of duty or Rs. 2000/- whichever is greater impliedly a lesser penalty can also be imposed. The provision, in other words, confers discretion on quasi-judicial authority. It was this discretion, which in the facts of the case was correctly exercised by the Commissioner (Appeals). The Revenue’s appeal also gets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versed the entire credit. Subsequently, a show-cause notice was issued for recovery of interest and for imposition of penalty. These proposals were not contested. However, the adjudicating authority gave the assessee an opportunity of being heard, which was made use of only to request for some more time for filing a reply to the show- cause notice. But no replies were ever filed. In this scenario, the original authority confirmed the demand of duty against the assessee and appropriated the reversal of credit towards such demand. Penalty equal to duty was also imposed under Section 11AC. Interest on duty was also ordered to be recovered under Section 11AB. The appellate authority sustained this decision but with reduction of the quantum of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed m this appeal is that the entire credit was reversed prior to the issuance of show-cause notice and therefore no penalty was imposable under Section 11AC and no interest was re coverable under Section 11AB. 4. With regard to interest, the assessee has also cited a judgment 2006 (205) E.L.T. 24 (Guj.) = 2008 (12) S.T.R. 101 (Guj.). The citation is not complete, nor has a copy of the judgment been produced by the Counsel. With regard to penalty, the assessee has relied on 2006 (196) E.L.T. 285 (Tri.-Bang), any copy of which is not available. The Counsel has not argued with reference to the above case law. In the result, the appeal filed by the assessee gets dismissed. 5. In the Revenue's appeal, I come across a prayer for enhancement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, sub-rule (2) of Rule 15 expressly invokes Section 11AC. No body has argued with reference to any other sub-rule of Rule 15. The question before me is whether, on the facts of this case, sub-rule (1) or sub-rule (2) of Rule 15 would be applicable. In the show-cause notice, there is no allegation of fraud, wilful suppression, collusion or misstatement. Though there is mention of 'intention to evade duty' by the noticee, there is no specific allegation as to whether they contravened any specific provision of law with such intention. In this scenario, applicability of sub-rule (2) of Rule 15 is ruled out. Only sub-rule (1) can be applied to the facts of this case. in this situation, the penalty cannot exceed the amount of duty or Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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