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TMI Blog2008 (3) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the ground that no cross-examination has been filed? Whether mens rea in any form is part of consideration before penalty under Section 11AC can be imposed? Held that:- On the face of a combined reading of provisions of Sections 11A(2B) and (2C), in view of the fact, that the matter relates to the period subsequent to receipt of the assent of President to the Finance Bill, 2001, in view of the fact, that leviable duty has been deposited immediately on 8-10-2001, while show cause notice was issued on 1-4-2002 only, no penalty under Section 11AC could be imposed. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Commissioner (Appeals), and the penalty imposed under Section 11AC, being penalty equal to duty, was set aside, on the ground, that mens rea to evade duty was conspicuously absent. For that the learned Commissioner relied upon certain facts and circumstances. Against this order the Department filed appeal before the learned Tribunal, and the learned Tribunal allowed the same, finding, that the plea of the assessee, that the slip was left by the proprietor of the respondent firm with the Munshi, to issue the excise invoice, but the Munshi did not issue the same, being unfounded, and unappealable to reason, therefore, the order was set aside. 4. Arguing the appeal, learned Counsel for the assessee relied upon two judgments of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Additional Commissioner dt. 25-6-2002, that the duty was paid by the assessee, on 8-10-2001. 8. Thus all said and done this much is not in dispute, that the leviable excise duty had been paid before issuance of show cause notice, inasmuch as, as observed above, show cause notice was issued on 1-4-2002, and the duty was deposited vide TR-6 Challan No. 13, dated 8-10-2001. 9. Since the only question argued before us is, on the anvil of non-leviability of penalty under Section 11AC, in view of the provisions of Section 11A(2B), we need not go into the question as framed in the order dt. 24-5-2005, and decide the appeal only on the question, as to whether on the face of provisions of Section 11A(2B), penalty under Section 11AC can be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11, issuance of notice under Section 11 was not barred." 11. We may at once observe, that the Finance Bill, 2001 became Finance Act No. 14 of 2001, w.e.f. 11-5-2001, while in the present case, as noticed above, the instant case relates to 5-10-2001, which is little short of five months later than the commencement of Finance Act of 2001. In that view of the matter, per force this judgment itself, so also in view of the language of sub-sections (2B) and (2C), the bar of Section 2B is clearly attracted. 12. Then, so far as Omkar Steel Tubes (P) Ltd.'s case is concerned, that was a case in which the appeal of the revenue was dismissed by recording a finding, question of mens rea in favour of the assessee. Then, reference was made to Machino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11AC of the said Act for imposition of penalty can be initiated or taken. The reason is obvious. As on the date show cause notice is issued, there is no short levy of Duty for which such notice can be issued." 14. May be, that in the two cases, decided by this judgment, as we get from the judgment, that in one of the appeals decided thereby, being that in the case of M/s. Raj Spinning & Weaving Mills Ltd., even the show cause notice was given on 27-3-2001, and therefore, to that extent, the proposition may be open to some doubt on the face of language of Section 11A(2C), but then, the judgment in M/s. Perfect Thread Mills Ltd. related to surprise visit to the factory conducted on 10/11-1-2003, obviously after receipt of the assent o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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