9911796707
TMI Blog2007 (10) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 22.05.2003 for Rs. 1,99,148/-, which were issued in response to their two refund applications dated 07.10.1995. 3. The appellant in their written submissions filed on 17.01.2005 had admitted that, the said amounts received again on 01.04.2003 and 22.05.2003 were liable to be given back to the Department. It was, however, urged that, no interest should be demanded nor any penalty imposed in respect of those amounts. 4. The adjudicating authority examined the sequence of events leading to double availment of refund of Rs. 31,448/- and Rs. 1,99,148/-. It was held that, the appellant had violated the provisions of Rule 173-G(i) of the Rules of 1944 by making a suo moto credit entry of these amounts in the PLA. It was held that, the appellant had of its own availed the refund without getting issued any sanction order for such refund from the competent authority. According to the Revenue, on 07.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention to avail the benefit of refund for the second time and thus they intended to play fraud with the Department. 6. The learned counsel for the appellant strongly contended that, since the refund, which was wrongly availed twice, was already deposited back by the appellant and since the liability in respect thereof was not challenged, interest or penalty should not be imposed, because, there was no malafide intention on the part of the appellant. It was submitted that, the appellant 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to issue refund cheques of the same amounts on 01.04.2003 and 22.05.2003 to the appellant. Even in their communications dated 12.04.2001 and 22.10.2002, the appellant did not disclose that suo moto credit was already taken in respect of the same amounts by the appellant on 02.07.1993. The appellant, in fact, again requested for sanction of refunds along with upto date interest by their letters dated 12.04.2001 and 22.10.2002. The appellant knowing full well that refund was already taken for the same amounts, accepted cheques and encashed them. There cannot be a more blatant display of fraud than the course adopted by the appellant in getting the refund again for the same amounts without disclosing that it was already taken by making credit entries in their PLA. Therefore, the ingredients for imposing penalty under Section 11-AC of the Act are clearly established. Having regard to the gravity of the conduct of the appellant, there is no scope, on the facts of this case, for considering any penalty lesser than the amount equal to the amount of refund wrongly taken and, therefore, there is no scope for arguing that lesser penalty should be imposed. When penalty equal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eater.' On a closer scrutiny of these clauses, it would appear that, while clauses (a), (b) and (c) do not refer to intention to evade payment of duty as a requisite 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 cases which fall under clause (d) of Rule 25(1), it would appear that, the maximum liability to pay penalty not exceeding the duty contemplated by Rule 25 would ordinarily be attracted in cases where there is intention to evade payment of duty as contemplated by Section 11-AC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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