2006 (9) TMI 113

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..... the assessee – penalty u/s 11AC set aside - 47 of 2005 - - - Dated:- 11-9-2006 - Adarsh Kumar Goel and Ajay Kumar Mittal, JJ. Ms. Ranjana Shahi, Advocate, for the Appellant. None, for the Respondent. [Judgment] - 1. This appeal has been preferred by the revenue proposing following question of law:- "Whether penalty under Section 11AC is liable to be imposed on the assessee and .....

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..... g concessional rate of Central Excise duty i.e. 9.6% though the rate applicable was 12.8%. There was, thus, short levy. The assessee debited the said duty with interest voluntarily. The adjudicating authority confirmed the demand of duty with interest and imposed penalty of Rs. 1,30,301/-. The Commissioner (Appeals) upheld the view of the adjudicating authority. The Tribunal set aside the penalty .....

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..... the Tribunal, learned counsel for the revenue is unable to show that there was any element of mens rea on the part of the assessee. Reference may be made to judgments of the Hon'ble Supreme Court in Hindustan Steel Limited v. State of Orissa, 1978 (2) E.L.T. (J 159) (S.C.) AIR 1970 SC 253, wherein, it was held that element of mens rea is normally required to be shown for imposition of pena .....

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