9911796707
TMI Blog2008 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... there is nothing to suggest that shortage of stock was by reason of fraud, collusion etc. - it is clear that mere contravention of provisions is not enough unless there is also intention to evade payment of duty - Shortage of stock may arise in various situations not necessarily reflecting intention to evade payment of duty – penalty not imposable X X X X Extracts X X X X X X X X Extracts X X X X ..... his view the Commissioner followed the decision of the Tribunal in the cases of Sri Selvakumar Textiles Vs. CCE - 2005 (188) E.L.T. 334 (T) and Rastriya Ispat Nigam Vs. CCE - 2003 (161) E.L.T. 285. The latter decision was challenged by the Department in the Supreme Court without success vide - 2004 (163) E.L.T. A53. It is well settled law that summary dismissal of SLP or civil appeal does not tant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roneously refunded, the person chargeable with duty may pay the amount of duty before service of the notice on him under sub-section (1) of Section 11A. Sub-section (2B) of Section 11 is not applicable where the non-levy/payment or short-levy/payment etc. was by reason of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of Act or of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit of duty before issuance of show-cause notice by itself does not absolve any person of the liability to penalty, no interference with the order in the facts of the case is warranted.
4. Accordingly, I would decline to modify/cancel the order of the Commissioner, although for a different reason, and dismiss the appeal.
(Dictated & pronounced in open Court) X X X X Extracts X X X X X X X X Extracts X X X X
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