9911796707
TMI Blog2009 (5) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. The said officers detected shortage of inputs and finished goods involving central excise duty of Rs. 1,23,400/-. Shri Nair, authorized signatory of the appellant company admitted the shortage and also explained that the said quantity was cleared from their factory. They have also deposited the entire amount of duty on 21-1-2002 and 2-2-2002. Further, on 9/10th July, 2002 Central Excise officers intercepted a truck carrying finished goods of the appellant company without accompanying any central excise invoice. The appellants deposited the entire amount of duty on the goods cleared without payment of duty of Rs. 19,522/- and shortage of input credit of Rs. 47,648/- was detected during stock verification on that day. Two Show Caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of show cause notice and case relates to after 11th May, 2001. On the other hand, learned D.R. submits that Explanation (1) of First proviso to Section 11A(2B) of Central Excise Act, 1944 provides that this section would not apply in the case of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty. 5. I find force in the submissions of the learned D.R. The main contention of the learned Counsel is that the appellants deposited the duty before issue of Show Cause Notice, therefore, penalty under Section 11AC of the Act is not applicable. It is also contended that this situation is covered by Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In the case of Arora Products (supra), Hon ble Rajasthan High Court held that on the face of combined reading of provisions of Section 11A(2B) and (2C) of Central Excise Act, 1944 and in view of the fact that duty leviable has been deposited immediately on 8-10-2001 while show cause notice was issued on 1-4-2002 only, no penalty could be imposed under Section 11AC. It is seen that Explanation (1) of proviso to Section 11A(2B) of the Act was not the issue before the Hon ble Rajasthan High Court and therefore, the said case law shall not apply here. The Hon ble Punjab Haryana High Court in the case of Commissioner of Central Excise, Delhi v. Machino Montell (I) Ltd., 2006 (202) E.L.T. 398 (P H) = 2006 (4) S.T.R. 177 (P H) held that o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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