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TMI Blog2017 (12) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act are there then there is no discretion to waive the penalty against the assessee - Admittedly, in this case, Revenue has failed to brought on record the evidence that the appellants did not pay the duty due to fraud, collusion, willful mis-statement etc. As provision of Section 11AC of the Act are missing, therefore, no penalty is imposable on the appellant - Further, under rule 26 of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same on payment of duty and filed ER-1 return monthly and later on they filed ER-4 return. During the course of audit, it was found that sale of finished goods as reported in ER-4 returns is less than that reported in ER-1 returns filed by the appellants. The proceedings were initiated against the appellant on the said ground. The appellants explained that the difference in figures due to breakage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as the figures shown by the appellant voluntarily in ER-1 and ER-4 returns are mismatching, the appellants explained that the said mismatching of figures are due to breakages of finished goods and they have reversed the attributable CENVAT Credit due to loss of finished goods. Therefore, it cannot be alleged that there was mala fide intention of the appellants not to pay the duty and in that ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court in the case of Dharmendra Textile Processors (supra) is that if the provision of Section 11AC of the Central Excise Act are invoked then the adjudicating authority has no power to waive the penalty against the assesssee. Therefore, it is mandate of the Hon'ble Apex Court that if provisions of Section 11AC of the Act are there then there is no discretion to waive the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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