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TMI Blog2016 (9) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... ts from the department with an intent to evade payment of duty - there is no justification for imposition of penalty - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... so which he is mandatorily required to do so. Hence the order passed by the lower appellate authority is bad in law and is fit to be set aside. In support of his submissions, the Ld. Advocate relied on the following decisions:- (i) Arora Products Vs. Addl. Commr. of Central Excise-2009 (235) E.L.T. 818 (Raj.) (ii) Commr. of Central Excise, Kol-IV Vs. Kusum Products Ltd.-2012 (283) E.L.T. 433 (Tri.-Kolkata) (iii) Commr. of C. Ex., GOA Vs. Sunrise Zinc Ltd.-2015 (322) E.L.T. 198 (Bom.) 4. After hearing both sides and on perusal of the appeal records, I find that Section 11A (2B) of the Central Excise Act, 1944 states as under: "(2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kusum Products Lt., (cited supra) in para 22 it was held that : "22. Undisputedly the proposal in the show cause notice was for imposition of penalty for contravention of Rule 4 and Rule 8 ibid, under Section 11AC read with Rule 25(1) ibid ld. Commr. in para (v) of para 2.9 of the impugned order, has found that ...... "Regarding the question of imposition of penalty, there is no suppression of facts before the Department of wilful mis-statement or fraud or evasion of duty. In the overall facts and circumstances of the case including the complexity of the issues involved, I come to the conclusion that this is not a case where the penal provisions can be upheld or that where the penalty can be imposed. Therefore, I refrain from imposing pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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