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TMI Blog2008 (11) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in the impugned order to drop the penalty proceedings - E/952/2005 - 1334/2008 - Dated:- 27-11-2008 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Ms. Joy Kumari Chander, Jt. CDR, for the Appellant. Shri G. Shivadass and Ms. Mona, Advocates, for the Respondent. [Order per : T.K. Jayaraman, Member (T)].- Revenue has filed this appeal against the impugned Order-in-Original No. 05/2004 dated 30-11-2004, passed by the Commissioner of Central Excise, Mysore. 2. When the matter came up for hearing before the Bench, the learned Jt. CDR invited our attention to the Final Order Nos. 855, 856/2005 dated 1-6-2005 [2005 (192) E.L.T. 899 (Tribunal)] in the Respondent's own case, passed by this Bench, partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not legal and proper. Therefore the Revenue prayed for imposition of equal penalty on the Respondents. Further the learned Jt. CDR relied on the decision of the Hon'ble Supreme Court in the case of Union of India v. Dharmendra Textile Processors [2008 (231) E.L.T. 3 (S.C.)] wherein it was held that there is no discretion available on quantum of penalty under Section 11AC of Central Excise Act, 1944. Paragraph 26 of the ibid order is reproduced herein below: "26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to deny Cenvat credit taken by Bangalore factory based on supplementary invoices issued by Mysore factory. Hence, the OIO passed by the Commissioner of Central Excise, Bangalore, has no merits. The same is set aside. Hence, we allow the appeal E/277/05. Moreover, it is not correct to say that the Commissioner has not examined the issue. The learned Advocate referred to the observations made by the Commissioner, in page 29 of the impugned order which are reproduced herein below: "From the findings noted above it is evident that assessee had failed to adopt correct assessable value in respect of Sandalwood oil that was being cleared to their Bangalore Unit. Such removal for captive consumption also amounts to sale. The under valuation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of CCE v. Mahindra Mahindra Ltd. [2005 (179) E.L.T. 21 (S.C.)] wherein it was held that suppression of facts cannot be alleged when Modvat credit is available to the sister unit and the view has to be taken on facts and circumstances of the case. 4. We have gone through the records of the case carefully. It is true that Mysore unit did not revise the cost in time. The said lapse resulted in loss of revenue only to the Mysore Commissionerate. We have observed that in view of the self removal procedure, the Respondents ought to have acted in time to revise the value of their product consequent to increasing the price of Sandalwood. This is definitely a lapse. The duty is payable by them and they could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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