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TMI Blog2010 (7) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... to enhance the quantum of penalty determined by the lower appellate authority under Section 11AC of the Central Excise Act to be imposed on the respondent and also to restore the penalty on the respondent under Rule 173Q of the Central Excise Rules, 1944. On a perusal of the records, we note that the department had framed a case of clandestine removal of excisable goods (angles and panels), against the respondent on the basis of what appeared from the results of interception of a vehicle (tempo) loaded with such goods. In adjudication of the relevant show-cause notice, the original authority found that the respondent had suppressed clearance value of such goods to the extent of Rs. 88,51,494/- for the period 1998-99. Accordingly, the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the said decision was admitted by the Apex Court. In the said case, the Tribunal had held that the limit fixed under Section 11AC for a penalty on an assessee was the maximum limit and that a penalty under the said provision should not necessarily be equal to duty. Further to this, the learned SDR today relies on the Supreme Court's judgment in the case of Union of India v. Rajasthan Spinning and Weaving Mills 2009 (238) E.L.T. 3 (S.C.) wherein the court's earlier judgment in Union of India v. Dharamendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.) was clarified and it was further held that payment of duty before or after show-cause notice did not alter the penal liability under Section 11AC. In this appeal, the appellant has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of the show-cause notice. Nowhere in the grounds of appeal could we find any averment/contention/plea with regard to the grounds for a penalty under Section 11AC of the Act or under Rule 173Q of the Central Excise Rules, 1944. The opening paragraph of sub-section (1) of Section 11AC has been reproduced under the "grounds of the appeal". Ingredients such as fraud, collusion, wilful mis-statement or suppression of facts, etc. for a penalty under Section 11AC are writ large on this text reproduced by the appellant. This excerpt from Section 11AC is followed by a bold averment that a penalty under Section 11AC is mandatory and not discretionary. Nevertheless, there is no whisper as to on what ground or for what reason there should be such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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