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TMI Blog2013 (11) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... self had admitted that the goods found short were removed from the factory without payment of duty and without issue of invoice and he also accepted the duty liability, penal provision of Rule 26 would be attract as he has dealt with the goods found short and were removed from the factory without payment of duty and without issue of invoice - just because the duty on the goods paid before the issue of show cause notice, the same cannot be treated as the ground for non-imposition of penalty under Rule 26 – order set aside – Decided in favour of Revenue. - Appeal No. 828-829 of 2007 (SM) - Final Order No. 58149-58150/2013 - Dated:- 25-10-2013 - Shri Rakesh Kumar, J For the Appellant : Shri B.B. Sharma, Authorized Representative (DR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 24/01/07 while remanding the duty/Cenvat credit demand, set aside the penalty on both the respondent mainly on the ground that the duty on the goods had been paid before the issue of show cause notice and also relying upon the decision of Hon’ble Bombay High Court in the case of Gaurav Mercantile Ltd. - 2005 (190) E.L.T. 11 (Bom.). The Commissioner (Appeals) in the impugned order also observed that though there is clandestine removal of finished goods, yet the penalty is not admissible as the duty involved on the goods was paid before the issue of show cause notice. Against this order of the Commissioner (Appeals), the present appeal has been filed by the Revenue. 2. None appeared for the respondent though a notice for hearing has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty only on the ground that the duty involved had been paid before the issue of show cause notice and in this regard he relied upon the decision of Hon’ble Bombay High Court in the case of Gaurav Mercantile Ltd. -2005 (190) E.L.T. 11 (Bom.). However, the above-mentioned judgment of the Hon’ble Bombay High Court is no longer good law, in view of Apex Court judgment in the case of Union of India vs. Rajasthan Spinning and Weaving Mills (supra), wherein the Apex Court has held that when the elements for imposition of penalty under Section 11AC are present, the penalty under this Section has to be imposed irrespective of whether the duty involved on the goods cleared clandestinely had been paid before the issue of show cause notice. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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