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TMI Blog2007 (9) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee before revenue rely on these documents - Cus A 52 of 2007 - - - Dated:- 20-9-2007 - . Shri Rajesh Balia and R.P. Vyas, JJ. [Order per]- Heard the learned counsel for the appellant. 2. This appeal is directed against the order dtd.19.7.2004 passed by the Customs Excise and Service Tax Appellate Tribunal. 3. By the impugned order the Tribunal has deleted the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants at the time of removal of the goods in August, 2000. Larger Bench of the Tribunal has also held in the case of CCE, Delhi-III v. Machine Montel (I) Ltd. - 2004 - (160) ELT 464 (T-LB) that where duty amount has been paid by the assessee before issuance of the show cause notice, no penalty can be imposed under Section 11AC of the Central Excise Act. In the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y levied by the Commissioner as well as the order of the Tribunal, we are of the opinion that no substantial question of law arises in this appeal for consideration. 7. Section 11AC which enables the levy of penalty in reads as under : "Penalty for short levy or non levy of duty in certain cases :- Where any duty of excise has not been levied or paid or has been short levied or short paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade payment of duty, the person who is liable to pay duty as determined under sub Sec.(2) of Sec. 11A shall also be liable to pay a penalty equal to the duty so determined. 9. Thus, for levy of penalty, foundation is that a finding has to be reached that default in payment was a result of fraud, collusion or willful misstatement or suppression of fact or contravention of any provision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty on account of mistaken belief of the assessee that the goods could be cleared for the purpose of testing without payment of full duty. There is no intent to evade the payment of duty and therefore, it is not a case where penalty is a must. Obviously, it is not a case that penalty was imposable. 11. Consequently, the judgment of the Tribunal does not give rise to the question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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