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TMI Blog2013 (12) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... - penal provisions are relatable to mala fide intention of the assessee, who is being penalized - As such it has to be first seen as to whether the provisions of Section 11AC are invocable or not – Following Union of India v. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - Section 11AC of Central Excise Act is not applicable to every case of non-payment or short-payment of duty - Conditions mentioned in Section 11AC should exist for imposition of penalty thereunder - the Commissioner has himself held that there is no mala fide on the part of assessee, thus, there was no reason to uphold the imposition of penalty upon the appellant – penalty imposed upon the assessee set aside – Decided in favour of Assessee.< ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed and reported the same to their Range vide ER-I Return for the month of Jan., 2008. They also deposited the same short paid amount along with interest and vide their letter dated 7-2-2008 intimated the payments particulars to their Jurisdictional Central Excise Authorities. Supplementary invoices were raised based upon which their vendors availing the Cenvat credit. 4. In the above background and in the light of investigation conducted, wherein the statement of various representatives of the appellant were recorded, they were issued a show cause notice proposing confirmation of the deposited amount along with interest and also for imposition of penalty. Vide his impugned order Commissioner has confirmed the demand and imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent (Audit) vide letter dated 7-2-2008 directed the appellant to reverse the said duty along with interest and submit the details of payments, re-conciliation of the figures etc. As such it is his submission that had the Audit not detected the said discrepancy, the same would have gone un-noticed. As such he supports the impugned order of the Commissioner and imposition of penalties upon the appellants. 7. After carefully considering the submissions made by both the sides, we find that Superintendent (Audit)'s first letter was addressed to the appellant on 7-2-2008, whereas the fact of payment of short reversal of credit was intimated by the appellant in their statutory return filed in the month of Jan., 2008. Copy of Internal Audi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department with intent to evade payment of duty all the differential duty short-paid, has been debited by them before issue of the Show Cause Notice. Therefore, extended period of limitation cannot be made applicable in this case." 9. We further observed, while imposing penalty he has held as under :- "Normally penalty is levied if violation is intentional. However in many penal provisions in Taxation Laws, the liability is absolute i.e. penalty is leviable irrespective of intention. Penalty is leviable for violation of Rules. It does not matter whether it is a genuine mistake, lack of knowledge, negligence or intentional violation of Rules. Besides Hon'ble Supreme Court, High Courts and Tribunals have consistently held that mens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 and Rule 25 of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944." 10. As is seen from above, Commissioner has imposed penalty on the ground simplicitor that there has been procedural and technical violation of the Rules, even though he has held that there was no intention on the part of the assessee to do so. He has further observed that such detection of mistake was by the assessee himself. We do not agree with the above reasoning of the adjudicating authority. Admittedly penal provisions are relatable to mala fide intention of the assessee, who is being penalised. As such it has to be first seen as to whether the provisions of Section 11AC are invocable or not. The Hon'ble Supreme Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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