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TMI Blog2014 (9) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of fact with regard to such an intention on the part of the assessee was rendered. Therefore, in the absence of any factual finding on that aspect, imposition of penalty cannot be sustained and therefore, the matter has to be remitted back to the Tribunal for rendering a factual finding as to whether there was any intention on the part of the assessee in not paying the duty in time. In fact the Tribunal had rejected the levy of penalty and interest only on the reason that assessee had paid the duty before issue of show cause notice. - Decided in favour of assessee. - 1025 and 1026 of 2009 - - - Dated:- 11-2-2013 - R. Banumathi and K. Ravichandrabaabu, JJ. Shri P. Mahaadevan, for the Appellant. Shri N. Murali for M/s. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 1995 to December 1999, the assessee cleared rough castings to their Rice Mill Division without payment of duty. Therefore, a show cause notice was issued to the assessee proposing to recover the duty and interest. It was also proposed to impose penalty for not paying the said duty and interest. Consequent upon the issuance of show cause notice, the Original Authority made an order demanding the unpaid duty of ₹ 2,40,702/- and also imposed equal amount of penalty under Section 11AC of Central Excise Act and another penalty of ₹ 25,000/- under Rule 173Q. However, the assessee paid the duty amount on 28-1-2000, even before the issuance of the said show cause notice. The Commissioner while sustaining the demand of duty, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to provide for a remedy for loss of revenue and the penalty under that provision is a civil liability . It was also observed that wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276C of Income Tax Act . 7. However, in a subsequent decision of the Hon ble Supreme Court reported in (2009) 13 SCC 448 = 2009 (238) E.L.T. 3 (S.C.) [Union of India v. Rajasthan Spinning and Weaving Mills], the above position was further clarified by holding that once the Section is applicable in a case, the Authority concerned would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference is answered. From the above, we fail to see how the decision in Dharamendra Textile can be said to hold that Section 11-AC would apply to every case of non-payment or short-payment of duty regardless of the conditions expressly mentioned in the section for its application. Therefore from the reading of the above decisions of the Hon ble Supreme Court, it is clear that there must be a factual finding rendered by stating that the act of the assessee attracts the conditions expressly contemplated under Section 11AC of the Act. From the reading of the order of the Tribunal, we could see no such finding of fact with regard to such an intention on the part of the assessee was rendered. Therefore, in the absence of any factual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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