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TMI Blog2017 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2002 are legal and correct? Held that: - SCN were issued periodically for normal period therefore there was no suppression of facts and for that reason only for every period within normal period of one year, different show cause notices were issued. Since there is no suppression of facts, the ingredient required for invoking the Section 11AC does not exist in the present case - appellant has made out fit case for waiver of penalties u/s 11AC and Rule 25 imposed by the Adjudicating authority - appeal disposed off - decided partly in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that all the show cause notices pertain to the present appeals were issued for normal period of one year therefore there is no suppression of facts on the part of the appellant. He submits that matter in the present case was referred to the Larger bench. The Larger bench only due to difference of opinion in appellant's own case by Ahmadabad bench decision in the appellant's own case reported as Oil and Natural Gas Corporation Ltd [2015 (320) ELT 641(Tri. Ahm) wherein appeal of the appellant was allowed. In this case there is no suppression of facts on the part of the appellant therefore no penalty in particular under Section 11AC can be invoked. He further submits that it is settled law that when matter is contentious there canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd Vs CCE 2002 (146) ELT 481 (SC) Penalty is not imposable under Rule 25 since the clause under which penalty is sought to be imposed has not been mentioned. 11 Amrit Foods Vs CCE 2005 (190) ELT 433 (SC) 12 Sai Electricals Vs CCE 2007 (207) ELT 569 (Tri. - Del.) 13 Binay Udyog Pvt Ltd Vs CCE 2006 (206) ELT 647 (Tri. - Kolkata) Penalty under Rule 25 can be imposed only when it qualifies the provisions of Section 11AC 14 Nirmal Industries Industrial Growth Centre Vs CCE 2016-TIOL-2399-CESTAT-CHD 3. On the other hand, Shri. K.M. Mondal, Special Counsel for the Revenue reiterates the findings of the impugned order. He also submits that the case of evasion of duty was unearthed only after investigation carried out by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 358(Tri. Mumbai)] 4. We have carefully considered the submissions made by both sides and perused the record. 5. We find that as regard the merit of the issue the same has been decided by the Larger Bench vide Order dated10-9-2015, accordingly excise duty by the appellant is payable on the value at which the goods were sold to Oil Market Company under the commercial invoice raised by the appellant as against APM price, therefore differential duty raised periodically in the various show cause notices involved in the present case stand confirmed. Now only issue to be decided by us, whether penalty under section 11AC of the Central Excise Act and penalty under Rule 25 of Central Excise Rules, 2002 are legal and correct. Taking into considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Gujarat High Court held that matter is referred to the Larger bench extended period not to be invoked. In the case of N.R. Agarwal Industries (supra) under the identical situation Hon'ble Gujarat High Court held that assessee had decision in their favour in own previous case, subsequently came to be decided against the assesee by Larger bench, assesee acted bonafide and honest belief that Cenvat Credit was available, no intention cannot be ascribed to them for evasion of duty or suppression of facts. On the similar issue in case of Marsha Pharma (supra) fact was that matter was referred to the Larger bench the matter was not finally settled since there were contrary view, issue is decided against the appellant vide Larger Bench decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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