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TMI Blog2017 (4) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the appellant. In such a case, imposition of penalty is not called for - appeal allowed - decided partly in favor of appellant. - Ex. Appeal No.206/11 - FO/A/75213/2017 - Dated:- 7-3-2017 - Shri P. K. Choudhary, Judicial Member Shri K. K. Banerjee, Advocate for the Appellant Shri K. Choudhury, Supdt. (A.R.) for the Revenue ORDER Per: Shri P. K. Choudhary This appeal has been filed by the appellant against the Order-in-Appeal No.01/RAN/2011 dated 10.01.2011 passed by Commr. (Appeals) of Central Excise Service Tax, Ranchi, whereby the ld.Commissioner rejected the appeal filed by the appellant. 2. Brief facts of the case are that M/s B. P. Agarwalla Engg. Works, the appellant herein, is a manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant and vide Order-in-Original dated 31.05.2002, the appellant was directed to pay ₹ 83,645/- under Section 11D of Central Excise Act, 1944 along with interest and penalty under Rule 173Q of the Central Excise Rules, 1944 was imposed. On appeal, the Commissioner (Appeals) upheld the Order-in-Original and rejected the appeal. Hence the present appeal. 3. Shri K. K. Banerjee, ld.Advocate appearing on behalf of the appellant, submits that when the rate of duty payable was @ 9.6%, the appellant had paid the duty @12.8%. He submits that the appellant debited the duty amount actually payable. Therefore, the excess duty was not collected from the buyers. In support of his contention, he relies on the following decisions : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be accepted. Therefore, the demand of duty along with interest is justified. In regard to imposition of penalty, I find force in the submissions of the ld.Advocate. I find that there is no allegation of willful mis-statement, suppression of facts or fraud on the part of the appellant. In such a case, imposition of penalty is not called for. Accordingly, penalty imposed in the impugned order is required to be set aside. 7. In view of the above observations, the impugned orders are modified in so far the demand of duty along with interest is upheld and the penalty is set aside. 8. The appeal filed by the appellant is partly allowed in the above terms. (Operative part of the order was pronounced in the open Court) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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