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TMI Blog2007 (10) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.08.2005 upholding the order-in-original by which the adjudicating authority had confirmed the demand of Rs. 31,488/- and Rs. 1,98,148/- being amounts refunded erroneously on 01.04.2003 and 22.05.2003 with interest @ 13% from the date of refund and imposed a penalty of Rs. 2,30,596/-. 2. It is not disputed that the appellant has availed the refund of the aforesaid two amounts twice. Earlier, the refund was availed by making a suo moto credit entry in the PLA on 02.07.1993 for paying duty on finished goods without getting any formal sanction order enabling the appellant to do so. Thereafter, the appellant again obtained refund of these two amounts by encashing two cheques; one dated 01.04.2003 for Rs. 31,448/- and another dated 22.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applications and obtaining the refund of the amounts twice by encashing the cheques given to the appellant, the appellant had deliberately defrauded the exchequer. For the detailed reasons, given in paragraphs 24 to 32 of the adjudicating authority, which are based on the established facts, the adjudicating authority came to the conclusion that, it was crystal clear that the intention of the appellant was to defraud the exchequer by claiming double refunds of Rs. 1,99,148/- and Rs. 31,448/-. The argument that interest and penalty should not be recovered was rejected in the light of the provisions of Sections 11-AB and 11-AC of the Act, for the reasons given in paragraph 32 of the adjudication order. 5. The Appellate Commissioner, on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was awaiting the orders of the Revenue authorities to deposit the amounts of refund, which were received again. It was also submitted that, the two so-called applications dated 07.10.1995 were only letters and they have wrongly been treated as fresh refund applications. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Chandigarh-I vs Dabur (India) Ltd., reported in 2005 (182) ELT 289 (SC), for pointing out that, the Hon'ble Supreme Court had dismissed the appeal against the order of the the amount, equal to the duty determined, could be imposed under Section 11-AC of the Act. 7. The learned authorised representative for the Department supported the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the communication sent on 07.10.1995 was only a letter and not a refund application, is wholly misconceived and contrary to the facts on record. It has been found that after the order dated 01.11.1994 was passed by the Deputy Commissioner, the appellant made two refund applications, both on 07.10.1995, under covering letter dated 07.10.1995 requesting for refund of the claim amounts at the earliest. In these communications/applications, the fact of having availed the refund by suo moto credit entries on 02.07.1993 was not at all mentioned. This clearly amounted to suppression of material facts. If it had been disclosed that, the refund was already taken by making suo moto credit entry in the PLA account on 02.07.1993, there was no occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y not be justified on the peculiar facts of the case, that such legal arguments can be raised. The decisions, on which reliance is placed on behalf of the Revenue, including the above decisions of the Hon'ble High Court of Bombay and Hon'ble High Court of Punjab & Haryana as well as the Larger Bench decision of this Tribunal as also the other decisions, which have followed the earlier decisions, leave no scope for any contention, that in cases where penalty is warranted under Section 11-AC, any lesser penalty could be imposed. The decision of the Hon'ble High Court of Rajasthan appears to have been rendered in the context of Rule 173-Q, which was invoked in the show cause notice along with Section 11-AC of the Act. The provisions of Rule 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e element for imposition of penalty, clause (d) of Rule 25(1) clearly refers to contravention of any of the provisions of the Rules or the notifications issued thereunder 'with intent to evade payment of duty'. It will be noticed that, while Section 11-AC speaks of contravention of any of the provisions of the Act or the Rules made thereunder with intent to evade payment of duty, clause (d) of Rule 25(1) contemplates contravention of any of the provisions of the Rules or the notifications issued thereunder with intent to evade payment of duty. On a combined and harmonious reading of Section 11-AC of the said Act and Rule 25 of the said Rules, which obviously cannot be interpreted to take away the rigour of Section 11-AC in respect of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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