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TMI Blog2015 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... malafide intention or suppression of facts considering the fact that the appellants have already paid the differential duty. The appellants are not liable for penalty under Rule 25. - By following the judgments of the Hon’ble High Court of Gujarat (2010 (9) TMI 422 - GUJARAT HIGH COURT) and the Hon’ble High Court of Madhya Pradesh (2014 (2) TMI 1192 - MADHYA PRADESH HIGH COURT), the impugned order insofar as it pertains to imposition of penalty of ₹ 7,92,529/- under Rule 25 is set aside - Decided in favour of assessee. - Appeal No. E/362/2011 - Final Order No. 40778 / 2015 - Dated:- 15-7-2015 - Shri P.K. Choudhary, J. For The Appellant : Shri M. Kannan, Advocate For The Respondent : Shri B. Balamurugan, AC (AR) M/s. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Orchid Healthcare - Unit II under Rule 25 of the Central Excise Rules, 2002. (vi) I drop the demand of ₹ 42,89,074/- made in the show cause notice No. 35/2010 dated 28.4.2010 being barred by limitation of time. (vii) I drop the interest under Section 11AB of Central Excise Act, 1944 on the duty dropped at (vi) above. (viii) I drop the penal proceedings initiated under Section 11AC of the Central Excise Act, 1944 in the above Show Cause Notice No. 35/2010 dated 28.4.2010. (ix) I drop the penalty proceedings initiated under Rule 25 of the Central Excise Rules, 2002 in the above Show Cause Notice No. 35/2010 dated 28.4.2010 in respect of the demand dropped at (vi) above. 3. The issue in dispute in the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods produced or manufactured or stored by him; or (c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or (d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravened. After analyzing and examining all these four sub-clauses of Rule 25, keeping in mind the facts of the case, the Tribunal held that the invocation of Rule 25 for imposition of penalty for delayed deposit of duty is not in accordance with law. 17. It is also to be borne in mind that Rule 25 starts with the word Subject to the provisions of Section 11AC............ . Section 11AC of the Central Excise Act deals with penalty for short levy or non-levy of duty in certain cases. It says that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The learned AR for Revenue reiterated the findings of the adjudicating authority and submitted that since there is no dispute in the method of valuation of physician samples under section 4 read with Rule 8 in the light of the decision of the Larger Bench of the Tribunal in the case of Jayanthi Food Processing (P) Ltd. Vs. CCE, Rajasthan - 2007 (215) (Tri. LB) which has been confirmed by the Hon ble Supreme Court reported as 2007 (215) ELT 327 (SC). He further submitted that there is a Board s Circular No. 813/10/2005-CX dated 25.4.2005 wherein it has been clarified that in respect of samples that are cleared for free distribution by the physicians the value shall be determined under Rule 4 of Central Excise (Valuation) Rules, 2000 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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