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TMI Blog2021 (3) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also on record that short payment occurred due to clerical error. The appellant was all along filing statutory returns and being pointed out, they paid the duty and interest without disputing the same. There was no intention on their part to evade payment of duty - Appeal allowed - decided in favor of appellant. - Excise Appeal No.79052 of 2018 - FINAL ORDER NO.75065/2021 - Dated:- 4-3-2021 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Ms.Romi Agarwal, Asstt.Manager (Finance) for the Appellant Shri A.K.Biswas, Authorized Representative for the Respondent ORDER On perusal of record, I find that the show-cause notice dated 10.12.2004 was issued to the appellant assesse i.e. Indian Oil Corporation Ltd. for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission that the activities of the Appellant Company are in full knowledge of the Department. All the statutory returns are maintained and submitted to the Department and the Excise returns are duly filed by the appellants. He further submits that there is no mis-statement or suppression of facts or fraud or collusion with an intent to evade payment of duty. In support of his submissions, he relied upon the decision of the Hon ble Supreme Court in the case of Union of India Vs. Rajasthan Spinning Weaving Mills reported in 2009 (238) ELT 3 (SC). 3. The Ld.D.R. for the Revenue, reiterates the orders of the lower authorities and submits that the penalty has rightly been imposed since short payment came to the notice only during audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A Division Bench of this Court has referred the controversy involved in these appeals to a larger Bench doubting the correctness of the view expressed in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai Anr. [2007 (8) SCALE 304]. The question which arises for determination in all these appeals is whether Section 11AC of the Central Excise Act, 1944 (in short the Act ) inserted by Finance Act, 1996 with the intention of imposing mandatory penalty on persons who evaded payment of tax should be read to contain mens rea as an essential ingredient and whether there is a scope for levying penalty below the prescribed minimum. Before the Division Bench, stand of the revenue was that said section should be read as penalty for statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given. 27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff s case (supra) was not correctly decided but Chairman, SEBI s case (supra) has analysed the legal position in the correct perspectives. The reference is answered......... . 21 . From the above, we fail to see how the decision in Dharamendra Textile can be said to hold that Section 11AC would apply to every case of non-payment or short payment of duty regardless of the conditions expressly mentioned in the section for its application. 22 . There is another very strong reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea was provided for. It only stated which he knows or has reason to believe . The said clause referred to wilful action. According to learned counsel what was inferentially provided in some respects in Rule 173Q, now stands explicitly provided in Section 11AC. Where the outer limit of penalty is fixed and the statute provides that it should not exceed a particular limit, that itself indicates scope for discretion but that is not the case here. 23 . The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, the short payment occurred due to clerical mistake and the facts of activities of the Appellant Company were fully known to the Department. In view of the above and keeping in view of the above discussions and facts, I find that the appellant was all along filing statutory returns and being pointed out, they paid the duty and interest without disputing the same. There was no intention on their part to evade payment of duty in view of the facts and circumstances as discussed above. 8. By respectfully following the ratio of the decision of the Hon ble Supreme Court in the case of Rajasthan Spinning Weaving Mills (cited supra), penalty imposed under Section 11AC of the Central Excise Act, 1944, cannot be sustained an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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