9911796707
TMI Blog2018 (7) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... t thereon There was no intent to evade, rather due to ignorance, the appellant continued to pay Central Excise duty as per previous Guidelines of the CBEC and as soon as they came to know of the new Guidelines issued in 2005, they have paid the differential amount of Central Excise duty with interest - the short payment of Central Excise duty which was later on made good by making payment of equal amount of Central Excise duty, has resulted only because of ignorance and not because of any intention to evade duty and therefore, the provisions of Section 11AC in this case, are not invokable and no penalty under this Section is imposable. Penalty set aside - appeal allowed in part. - Ex. Appeal No. 518/10 - ORDER NO.FO/75369/2018 - Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1944 and equal amount of penalty had been imposed under Section 11AC of the Central Excise Act, 1944 by the Adjudicating Authority. Interest under Section 11AB was also confirmed. 3. The appellants have gone before the ld.Commissioner (Appeals) against the above mentioned Order-in-Original dated 27.11.2008, but the ld.Commissioner (Appeals) was pleased to ditto Order-in-Original of the original adjudicating authority. The appellants are before us against the above mentioned Order-in-Appeal No.31.03.2010 on the ground that the appellant was genuinely not aware about the new Valuation Guidelines for physician samples issued by CBEC vide their Circular No.813/10/2005-CX dated 25.04.2005 and they had been discharging their Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 is imposable or not ? It is a matter of record that the appellants have voluntarily complied and made good of the short payment of duty, which has arisen by sheer ignorance on the part of them about the new procedure for Valuation of physician samples provided by CBEC vide their Circular No.813/10/2005-CX dated 25.04.2005. It is also matter of record that as soon as, the short payment was pointed out, the appellants have voluntarily paid the Central Excise duty including interest thereon. The provisions of Section 11AC of Central Excise Act, 1944, provides that penalty can only be imposed where there is an intention to evade Central Excise duty. In this case, we find that there was no intention to evade Central Excise duty rather due to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o mala fide intention on its part to evade the payment of duty. The further stand is that the goods were cleared from the factory only on payment of duty. This stand which has been taken in the reply to the show cause notices was not found to be incorrect in the order-in-original. As such the imposition of penalty of the equal amount of duty under the order-in-original cannot be sustained. 20. It is well settled that when the statutes create an offence and an ingredient of the offence is a deliberate attempt to evade duty either by fraud or misrepresentation, the statute requires mens rea as a necessary constituent of such an offence. But when factually no fraud or suppression or misstatement is alleged by the revenue against the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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