2005 (2) TMI 602

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... d against the imposition of penalties on the appellants. The ground for imposition penalties is that the appellant was required to make payment of duty at the time of clearance of goods from the factory based on the price prevailing at the depots. It was noticed that in some cases, the price taken was lower than the price prevailing at the depots. The Assistant Commissioner of Central Excise wh .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... t penalty was imposable under Rule 173Q. According to the learned Counsel ingredients required for imposition of penalties are the same under Section 11AC and Rule 173Q. 3. I have heard the learned DR also and perused the records. The findings of the Commissioner (Appeals) order are as under : I find that essential ingredients for invoking penal action under Section 11AC are wilful misstateme .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... tory. In view of this, it is very clear that there is no clearcut case for suppression of facts with intent to evade payment of duty. Thus, provisions of Section 11AC do not get attracted. I have also referred to the judgment cited by the respondent in this regard. Accordingly, I hold that these are not fit cases for imposition of penalty under Section 11AC of the Central Excise Act, 1944. Once it .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ndents are liable to penal action under Rule 173Q of Central Excise Rules, 1944 which was also invoked in the show cause notices as Rule 173Q also provided for penal action in cases of contravention of any of the provisions of erstwhile Central Excise Rules, 1944. Accordingly, I concur with the departmental view that Assistant Commissioner has erred in not dwelling on this issue, even though it wa .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... . In the first of the two paras above, the Commissioner (Appeals) has clearly held to the effect that the payment of lesser amounts resulted from price fluctuation and communication gap between the depots and the factory. He also noted that, on account of these reasons, in some cases, the appellants have also paid duty at higher value. These findings do not justify imposition of penalties. The .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X