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TMI Blog2010 (10) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Rule 25 is set aside. But as submitted by the learned Advocate, it is a procedural lapse of the Central Excise provision. Hence, the penalty under Rule 27 can be imposed. Accordingly, penalty under Rule 27 is imposed to Rs. 2,000/-, the appeals filed (by the Revenue and assessee) are disposed of and the cross objections are also disposed of in the above manner. X X X X Extracts X X X X X X X X Extracts X X X X ..... amendra Textile Processors reported in 2008 (231) 3 (S.C.) wherein the Hon'ble Apex Court has held that no discretion available for quantum of penalty under Section 11AC of the Central Excise Act. Mens rea is not an essential ingredient thereunder. 5. Heard both the sides. I have considered the submissions made by both the sides in detail. In this case, the allegation against the assessee is that they have not entered the finished goods in their daily stock account register. It is not alleged against the assessee that these goods were not entered in their stock account register with the intention to remove clandestinely. Moreover, the Rule 25 of Rules 2002 reads as under :- "Rule 25. Confiscation and penalty - (1) Subject to the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case. The reliance of learned DR also relied on the decision of Dharamendra Textile Processors is of no help as the issue before the Hon'ble Apex Court was quantum of mandatory penalty. In fact, there is a provision for levy of mandatory penalty under Section 11AC of the Act if it is found that the act is of fraud with intent to evade duty. In that case, there is no such discretion to reduce the penalty. The said issue has been dealt by the Supreme Court in the case of Rajasthan Spinning & Weaving Mlils reported in 2009 (238) E.L.T. 3 (S.C.) wherein in para 23 and 24 of the said decision, the Hon'ble Apex Court has dealt the issue which are reproduced here as under :- "23. The decision in Dharmendra Textile must, therefore, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aily stock with intention to clear them without payment of duty. Hence following the decisions of the Tribunal in the case of Ronak Laminex (P) Ltd. (supra) and Amrut Ceremics (supra), I hold that in this case also, the confiscation and penalty is not warranted under Rule 25 of Central Excise Rules 2002. Hence the impugned order for confiscation and imposition of penalty under Rule 25 is set aside. But as submitted by the learned Advocate, it is a procedural lapse of the Central Excise provision. Hence, the penalty under Rule 27 can be imposed. Accordingly, penalty under Rule 27 is imposed to Rs. 2,000/-. 9. With these observations, the appeals filed (by the Revenue and assessee) are disposed of and the cross objections are also dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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