9911796707
TMI Blog2011 (7) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is in appeal against the judgment of the CESTAT dated 18th August 2004. At the time of admission of appeal, following question of law was framed : "(1) Whether the Tribunal's order setting aside the mandatory penalty and interest especially when the intent to evade payment of duty is well established from the fact that duty amount confirmed by invoking extended period has been upheld an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bona fide belief that the assessee was not required to pay the same. Be that as it may, even before the Department issued show cause notice for recovery of such unpaid dues, the dues were paid and the credit was reversed. 3. It appears that to the extent the assessee had used certain items for captive consumption without payment of duty valued at ₹ 2,46,000/- Department issued show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el.). 4. Before us, learned counsel for the Revenue submitted that the issue is decided by the Apex Court in their favour in the case of Union of India v. Dharamendra Textile Processors, 2008 (231) E.L.T. 3 (S.C.) wherein it was held that penalty under Section 11AC is required to be imposed without the necessity to prove mens rea. He submitted that merely because the assessee deposited the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs (supra), this cannot be the sole ground for deleting the penalty. However, in view of the decision in the case of Rajasthan Spinning & Weaving Mills (supra), explaining the decision in the case of Dharamendra Textiles, other defences of the assessee shall have to be examined. In other words, if the assessee can establish that it had sufficient reasons for not paying the duty and that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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