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TMI Blog2009 (7) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... -2005 to 31-10-2005). The appellate authority has clarified the point by stating that the intention to evade is not evident in this case . Unfortunately, this finding of the appellate authority have not been touched by the grounds of this appeal. In the grounds of appeal, the appellant quotes from certain judgments of the Supreme Court/High Court/Tribunal. Nowhere in the text of the grounds of appeal is there any mention of mens rea let alone the relevant findings of the Commissioner (Appeals). In this difficult situation the learned JDR has strenuously pointed out that the assessee accepted the lapse and agreed for payment of differential duty for the period of dispute and further that this fact has been noted in the statement of facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of differential duty. It is submitted that the lower appellate authority ruled out such intent and clearly held that the assessee had no mens rea in short-paying duty during the period of dispute. It is pointed out that this finding has not been challenged in the present appeal and, therefore, the appellant cannot make out a valid case for invoking Section 11AC against the assessee. 3. Both sides have referred to case law. While the learned DR has heavily relied on the Supreme Court s judgment in Union of India v. Dharmendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.) in support of his argument that a penalty under Section 11AC is mandatory where the demand of differential duty stands confirmed under proviso to Section 11A(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y started determining the assessable value of physicians samples in terms of the second circular of the Board. In other words, as rightly found by the department, there was a short-payment of duty during the period from 25-4-2005 to 31-10-2005. This finding of the department made its way into a show-cause notice wherein it was inter alia alleged that the extended period of limitation under the proviso to Section 11A(1) was invokable for recovery of the differential duty from the respondents inasmuch as they had suppressed the fact that duty had been paid during the said period in terms of the earlier circular. Show-cause notice also alleged that the clearances of physicians samples effected during the said period were under-valued with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. That is what Dharmendra Textile decides. 6. In the instant case, there is a finding that the assessee had no mens rea. Each of the conditions/requirements laid down under Section 11AC for a penalty to be imposed thereunder has an element of mens rea inbuilt therein. These conditions/requirements are: (a) fraud, (b) collusion, (c) wilful mis-statement or suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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