2007 (4) TMI 265

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..... payment not only of the duty, but also of the interest calculated under Rule 8(3) of the Rules. Therefore, we have no doubt in our mind that the Tribunal has correctly interpreted Rule 25 of the Rules and the penalty could not be imposed on the respondent-company. Appeal is dismissed.
Bilal Nazki and Nooty, JJ. [Judgment]. - This appeal is filed against the Final Order No. 1351 of 2006, dated 10-8-2006, passed in Appeal No. E/295/2006, on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, reversing the order in CEX-11/2005, dated 22-12-2005. 2. The respondent-company-Andhra Cements Limited is manufacturing cement and clinker, which attract duty, which was required to be discharged on a mo .....

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..... r : 'Penalty for short-levy or non-levy of duty in certain cases : Where any duly of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of Section 11A, shall also be liable to pay a penalty equal to the duty so determined. Provided that where such duty as determined under sub-section (2) of Section 11A, and the interest payable thereon under Section 11AB, is paid within thirty days from the date of communication of the .....

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..... nt of duty, he is liable to pay the penalty in terms of Rule 25 of the Rules. A bare perusal of this Rule would suggest that evasion of payment of duty is not sufficient to impose penalty on a producer or manufacturer. There should be an element of intention to evade payment of duty. Unless the authorities come to a definite conclusion that there was an intention to evade the payment of duty, penalty cannot be imposed. 6. In the present case, there is a finding of the Tribunal that the circumstances were beyond the control of the respondent-company as the matter was pending before BIFR, and as such, the amounts could not be deposited by the respondent-company within time and as soon as it was in a position to make the payment, the responde .....

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