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TMI Blog2016 (8) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... r contravention of any provision of this act or rule made with intent to evade payment of duty, therefore applying the ratio of this judgment appellant is not liable for penalty under Rule 25. - penalty set aside – decided in favor of appellant. - Appeal No. E/1154/11 - A/86552/16/SMB - Dated:- 10-3-2016 - MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri. Sanjay Hasija, Superintendent (A.R.) ORDER PER : RAMESH NAIR This appeal is directed against Order-in- Appeal No. SB/134/Th-I/10 dated 31/8/2010 passed by the Commissioner (Appeals), Central Excise, Mumbai Zone I, whereby Ld. Commissioner(Appeals) upheld the Order in Original dated 16/2/2009 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... She submits that in view of this judgment appellant was not required to pay the duty from the cash account and duty paid by them from Cenvat credit account is correct and legal. She further submits, as regard the penalty under Rule 25 she relied upon the judgment in case of Commissioner of C. Ex. Customs Vs. Saurashtra Cement Ltd [2010(260) ELT 71(Guj)] according to which the penalty under Rule 25 can be imposed when the ingredients provided under Section 11AC are satisfied whereas this is not the case of suppression or willful mis-statement, fraud and collusion etc. therefore penalty under Rule 25 cannot be imposed. 4. Shri. Sanjay Hasija, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the duty during the default period is required to be paid on consignment basis. However appellant have discharged the duty and whatever delay in payment of duty on the basis of date of clearance of the goods, they have paid interest as applicable. This is a case of delay in payment of duty and cannot be construed as case of evasion of duty, therefore appellant is not liable for penalty under Rule 25. In the judgment cited by the Ld. Counsel in case of Saurashtra Cement Ltd(supra) the Honble Gujarat High Court, on the issue of imposition of penalty under Rule 25 in the identical case has observed as under: 17. It is also to be borne in mind that Rule 25 starts with the word Subject to the provisions of Section 11AC.......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or willful mis-statement, fraud and collusion or contravention of any provision of this act or rule made with intent to evade payment of duty, therefore applying the ratio of this judgment appellant is not liable for penalty under Rule 25. As regard the judgment relied upon by the Ld. A.R. in case of Shivam Pressings(supra), I find that the facts in that case was that the assesee did not pay duty on consignment wise either through Cenvat credit or through PLA, whereas in the present case the appellant has admittedly paid the duty from the Cenvat credit account, the facts of the cited judgment and in the present case are different, therefore the ratio of the said judgment is not applicable to the fact of the present case. As per my above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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