Excise penalty under mandatory provisions fails without a recorded finding of intent to evade duty.

Shortage-based excise duty demand on pig iron and C.I. skull scrap was treated as requiring readjustment on the basis of the show-cause notice and the stock materials already on record, and the earlier and later shortages were read together for redetermination of liability. Penalty under Section 11AC could not be sustained because no finding had been recorded that the short-payment or non-payment was accompanied by fraud, suppression, wilful misstatement, or intent to evade duty. The penalty was therefore set aside, while the duty issue was left to be redetermined on the adjusted stock position.

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Issues: (i) Whether the duty demand relating to 12.12 MT of pig iron and 153.36 MT of C.I. skull scrap could be sustained after the show-cause notice and the findings on adjustment of shortages. (ii) Whether penalty under Section 11AC of the Central Excise Act, 1944 could be imposed without recording a finding of intent to evade duty or mens rea.

Issue (i): Whether the duty demand relating to 12.12 MT of pig iron and 153.36 MT of C.I. skull scrap could be sustained after the show-cause notice and the findings on adjustment of shortages.

Analysis: The notice dated 15 February 2001 covered the relevant shortage-based demand, and the appellate authorities were required to examine the stock position on the basis of the materials already brought on record. The Court held that the earlier shortage and the subsequently noticed shortage had to be read together for redetermination of the duty liability, and the Tribunal was justified in rejecting the contrary view that no notice existed for the later shortage.

Conclusion: The duty demand on this count was upheld for redetermination in accordance with the notice and the adjusted stock position, against the assessee.

Issue (ii): Whether penalty under Section 11AC of the Central Excise Act, 1944 could be imposed without recording a finding of intent to evade duty or mens rea.

Analysis: Section 11AC applies only when non-payment, short-payment, or short-levy of duty is accompanied by fraud, collusion, wilful misstatement, suppression of facts, or contravention with intent to evade duty. The record disclosed no finding at any stage on this essential ingredient. The Court applied the settled principle that, though penalty under the provision is mandatory once the section is attracted, the foundational requirement of intent to evade must first be established.

Conclusion: The penalties imposed under Section 11AC were quashed for want of a finding on mens rea, with liberty to the Department to re-determine the issue after hearing the assessee, in favour of the assessee on this issue.

Final Conclusion: The appeal succeeded only on the penalty question, while the duty-related findings were otherwise left undisturbed to the extent indicated, resulting in a partial allowance of the appeal.

Ratio Decidendi: Penalty under Section 11AC of the Central Excise Act, 1944 can be sustained only when the authorities first record a finding that the duty short-payment or non-payment occurred with the requisite intent to evade duty; once that foundation is absent, the penalty cannot stand.

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