2010 (1) TMI 1071

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..... d of dispute. According to that authority, no such penalty was liable to be imposed on the respondent as they had paid the entire amount of duty before issuance of the show-cause notice. This decision was affirmed by the Commissioner (Appeals) in an appeal filed by the department. According to the appellate authority, any penalty under Section 11AC was not imposable where the duty had been paid before the issue of the show-cause notice. The appellate authority did not find it necessary to look into the question whether there was any fraud, collusion, suppression/wilful misstatement of facts or any contravention of rules (with intent to evade duty) by the respondent. The appellate authority chose to follow the Tribunal s Larger Bench decisio .....

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..... y grievance against the appellate Commissioner s order. The ld. consultant submits that the mistake of clearing goods without cover of invoice was committed by a clerk and the same was not intentional. It is submitted that the duty on such clearances was paid forthwith upon having been pointed out by Departmental officers. In such circumstances, according to the ld. consultant, there can be no penalty on the respondent under Section 11AC. 4. After giving careful consideration to the submissions, I find that the crucial fact which is relevant to applicability of Section 11AC of the Act is not in dispute and the same is that the respondent contravened the relevant provisions of law by clearing dutiable goods without cover of statutory invoi .....

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..... show-cause notice alleged such intent against the respondent. The lower authorities chose to hold that, as the duty amount was paid before the issuance of show-cause notice, no penalty was imposable on the respondent. The appellate authority refrained from looking into the question whether there was any contravention of law by the respondent with intent to evade payment of duty. The tenor of the orders passed by the lower authorities is that the allegation raised in the show-cause notice that the respondent had contravened certain provisions of law with intent to evade payment of duty is liable to be upheld. In the circumstances, the mandatory penalty under Section 11AC of the Act on the respondent cannot be avoided. In any case, the decis .....

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