2008 (5) TMI 538

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..... This appeal by the Revenue involves the dispute as to imposability of penalty under Section 11AC of the Central Excise Act or Rule 25 of the Central Excise Rules, 2002. 2. The case of the Revenue is that by reason of delayed payment of duty the respondent became liable to penalty in terms of second proviso to sub-rule (3) of Rule 8 of Central Excise Rules. Under Rule 8(3), of the Rules, as i .....

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..... ty was not imposable under Section 11AC of the Act or Rule 173Q of the erstwhile Rules corresponding to Rule 25(1) of the 2002 Rules. He also referred to Board s Circular dated 15-12-2003 in this regard. 3. Although, I am unable to endorse the view taken by the Commissioner (Appeals) that where the duty is paid before issuance of show-cause notice, penalty cannot be imposed for the reasons brief .....

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..... on the decisions of the Supreme Court in Hindustan Steel Ltd. v. State of Orissa - 1978 (2) E.L.T. (J 159) (S.C.) and State of Madhya Pradesh v. Bharat Heavy Electricals - 1998 (99) E.L.T. 33 (S.C.). The discretion exercised by the Commissioner (Appeals) in the facts of the case does not appear to be irrational or arbitrary to warrant interference. 4. As a result, I find no merit in this appeal, .....

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