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TMI Blog2010 (6) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... an, Member (T) REPRESENTED BY : Shri B.V. Kumar, Advocate, for the Appellant. Shri M. Vivekanandan, SDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - This appeal is directed against the Order-in-Appeal No. 14/2006(H-II)C.E., dated 31-7-2006 vide which the learned Commissioner (Appeals) has upheld the imposition of equal penalty under Section 11AC of the Central Excise Act, 1944. 2. The relevant facts that arise for consideration are. The appellants are the manufacturers of Cigarettes falling under Chapter Heading No. 24.03 of the Schedule to the Central Excise Tariff Act, 1985. The Officers of Central Excise during the course of search conducted in the factory on 10-10-1998 have found 220 CF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso imposed a penalty of Rs. 25,000/- on Shri Raju Kuriakose, Production In-charge under Rule 209A of the Rules ibid. The appellants have paid the redemption fine of Rs. 50,000/- and penalties of Rs. 50,000/- and Rs. 25,000/- vide TR 6 Challans dated 8-3-1999. Aggrieved by the impugned order, the Department filed the appeal on the ground that the Additional Commissioner erred in not imposing penalty equal to duty on the appellants since he held that there was a scope for removal of the goods without payment of duty but for the detection of the same by the department. The Commissioner (Appeal) vide Order-in-Appeal No. 11/2004 (H-II) (D)C.E., dt. 20-10-2004 remanded the case to the adjudicating authority for de novo adjudication. The Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed in the earlier adjudication proceedings. 5. The learned Departmental Representative would submit that the penalty, which has been imposed under Section 11AC is correct. He would submit that the assessee had stored cartons of cigarettes in a place other than the bonded storeroom. He would submit that cigarette being an evasion prone commodity, storing of such goods in a place other than the bonded storeroom is itself an indicator of the intention of the assessee. He would submit that the Adjudicating Authority as well as the Commissioner (Appeals) has clearly brought out the intention of the assessee in imposition of penalty under Section 11AC. 6.We have carefully considered the submissions made at length by both sides and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant when they were cleared. There is nothing on record to indicate that there was an intention-to evade the duty, as correctly contended by the learned Counsel, if the factory is under the physical control of the Central Excise Officer, no occasion may arise for removal of finished goods with intent to evade payment of duty. We find that the provisions of Section 11AC of Central Excise Act, 1944 will come into play only when the Central Excise Duty has not been paid or levied or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or willful mis statement or suppression of facts, or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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