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TMI Blog2008 (1) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 35 (G) of the Central Excise Act 1944, challenging the order dated 27.12.2005 (Annexure P-3) passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi (for brevity 'the Tribunal') whereby it has accepted the appeal of the respondent herein and set aside the said order. In this appeal the revenue has raised the following substantial question of law: "Whether penalty and interest can be waived in toto on the sole ground that duty has been deposited before issue of show cause notice when the Central Excise law does not provide for the same and especially when the Hon'ble Tribunal themselves has been distinguishing their ruling in the case of CCE vs. Machino Montell (I) Ltd .(2004)(168) ELT 466)?" Briefly stated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. 3. The department filed an appeal before the Commissioner (Appeals) Central Excise, Jalandhar contending that the shortage of inputs and non receipt of input material were admitted by the respondentassessee and therefore, the penalty under Rule 57(I)(4) equal to MODVAT credit wrongly availed was to be imposed as the respondent has taken MODVAT credit by fraud and willful mis-statement. 4. On the other hand, the respondent-assessee had submitted that it was a technical breach for which no penalty was imposable. The Commissioner (Appeals ) Central Excise vide his order dated 29.1.2004modified the original order dated 27.11.2000 of the adjudicating authority and enhanced the penalty from Rs.25,000/- to Rs.3,25,456/- under Rule 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, the assessee has supported the order of the Tribunal and has relied upon the judgments of this Court in CEA No.13 of 2005 decided on 25.7.2006 ( Commissioner of Central Excise, Delhi vs. M/s. Machino Montell (I) Ltd . and another 2006 (2020 E.L.T. 398 ), CEA No.21 of 2007 decided on 10.5.2007 ( The Commissioner, Central Excise Commissionerate, Rishi Nagar, Ludhiana vs. M/s. Jindal Polyvin Pipes and another ), CEA No.22 of 2007 decided on 10.5.2007 ( The Commissioner, Central Excise Commissionerate, Rishi Nagar, Ludhiana vs. M/s TR Industries and another ) and CEA No.26 of 2007 decided on 16.8.2007 ( Commissioner of Central Excise,Ludhiana vs. M/s. Sigma Steel Tubes and another )- 2007 (218) E.L.T. 657(P H). 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her relied upon by the Court in CEA Nos.21 and 22 of 2007 on a similar question of law as raised in the present appeal and it was held that the finding with regard to the intention to evade the payment of duty is a question of fact. Similar judement dated 16.8.2007 in CEA No.26 of 2007 titled as Commissioner of Central Excise,Ludhiana vs. M/s. Sigma Steel Tubes 2007 (218) E.L.T. 657(P H) and another as well as after relying upon the Machino Montell 's case (supra) and the judgment of the Hon'ble Supreme Court in the case of Rashtriya Ispat Nigam Ltd. v. Commissioner , 2004 (163)E.L.T. A53, this Court held that no penalty is imposable under Section 11(A)(C)of the Act as well as under Rule 173 (Q) of the Central Excise Act, 1944 on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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