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TMI Blog2013 (9) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... o the issuance of the show cause. The Revenue raised the following substantial question of law in preferring the above appeal:- "1. Whether the Tribunal is correct in holding that demand of interest under Section 11 AB of Central Excise Act, 1944, as it stands after 11.05.2001 read with Rule 57 AH of the erstwhile Central Excise Rules 1944 /Rule 12 of the erstwhile Cenvat Credit Rules, 2001/Rule 12 of the Cenvat Credit Rules, 2002 is not payable if duty is paid before issue of Show Cause Notice notwithstanding delay in payment of Central Excise Duty ?" 2. It is the admitted case of the assessee that the assessee transferred certain Cenvat availed inputs to its sister concerns and had not paid the appropriate duty at the time of clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led appeal before the Adjudicating Authority. 3. The Adjudicating Authority, however, held that the assessee did not plead their bona fide and that as the omission was not an unintentional mistake, their contention could not be accepted; the issue was a recurring one and hence there was mala fide intention on non-payment of duty. In the circumstances, Rules 57AB, 52A and 173G, not being followed, the defence that the duty had been paid even before the adjudication was made, would not be a good defence to the assessee. On the facts found, penalty under Section 11AC read with Rule 57AH and Rule 173Q of the Central Excise Rules was held to be justified. As against the same, the assessee went on appeal before the Commissioner of Customs and Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's appeal to cancel the levy of penalty. 6. In the decision in the case of Commissioner of Central Excise, Chennai-II Vs Hindustan Motors Ltd., reported in 2012 (284) ELT 168 (Mad.) which followed the decision in the case of Collector Vs. Rashtriya Ispat Nigam Ltd., reported in 2004 (163) E.L.T., A 53 (S.C), this Court pointed out that there being no material to show that there was escapement of duty and non-payment as intentional or on account of deception, the Revenue's contention could not be upheld. Thus, this Court upheld the order of the Tribunal. The case of the assessee herein stands on a different footing. The transaction of the assessee and the periodicity as given in the order of the adjudicating authority reads as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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