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TMI Blog2015 (11) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... s no specific certificate certifying that the yarn received would be supplied to handloom units, the fact remains that merely from this it cannot be inferred that the respondent were aware of the illicit diversion of the yarn by the Punjab State Handloom Weavers Apex Co-operative Society to Power Loom Units. In view of this, we agree with the judgment of co-ordinate Bench of the Tribunal (Final Order No.954/2011-EX dated 14.10.2011) holding that no malafide can be attributed to the respondent and hence the levy of interest under section 11AB and imposition of penalty under section 11 AC or Rule 173 Q (1) (d) would not be called for. - No merit in Revenue's appeal - Decided against Revenue. - Excise Appeal No.E/5000/2004-EX[DB] - FINAL ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be, Certifying that the yarn is going to be used only on the handloom. In the present case, during the period from January, 1998 to December, 1999, the respondent supplied quantity of certain spun yarn declared to be yarn of polyester staple fiber containing cotton but not containing any other textile material and in which the proportion of polyester stable fiber is less than 70% by weight of the total fiber content to the Punjab National Handloom Apex Cooperative Society Ltd., Chandigarh which is Punjab Government Partnership Undertaking. The respondent, however, had produced only a certificate issued by the above mentioned cooperative society certifying that Punjab State Handloom Weavers Apex Co- Operative Society, Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance amount of ₹ 9,620/- which the respondent had been ordered to pay forthwith by the Additional Commissioners order has also been paid. 2. The respondent filed an appeal before the Commissioner (Appeals) wherein they only challenged the imposition of penalty on them and also the levy of interest under section 11AB on the ground that during the period prior to May, 2001 the interest on duty under section 11AB could be demanded only in the cases where the non-payment/ short payment of duty was due to fraud willful misstatement, suppression of fact or contravention of provisions of Central Excise Act, 1944 or of the Rules made there under with intent to evade the payment of duty and in this case these elements are not present, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. 5. Shri M.S. Negi, the ld. DR assailed the impugned order by reiterating the grounds of appeal and pointed out that as mentioned in the Tribunals final order, in respect of one consignment of yarn valued at ₹ 2,13,260/- polyester content was 80% instead of less than 70% and thus, there was mis-declaration of the description. Shri Negi also pointed out that the exemption was subject to the assessee producing a certificate from the cooperative society regarding use of the yarn on handloom, while in the present case the goods have been cleared and supplied to Cooperative Society at nil rate of duty only on the basis a letter issued by a Cooperative Society mentioning that the Society is exempt from excise duty. Shri Negi, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred that there was mis-declaration of polyester content in all the consignment, that the Tribunal in another case involving the respondent, wherein identical issue was involved from the period from March, 1998 to May 1998 vide final order No.954/2011-Ex dated 14.10.11 has dismissed the Revenues appeal praying for levy of interest under section 11AB and imposition of penalty, that ratio of this judgement of the Tribunal is squarely applicable to the facts of this case and that in view of the above, there is no infirmity in the impugned order. 6. We have considered the submissions from both the sides and perused the records. The respondent during the period of dispute, that is, during the period from January 1998 to December, 1999 had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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