2010 (1) TMI 457

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....04 (248) E.L.T. 632 (Tri. - Bang.)], setting aside the levy of penalty on the respondent-assessee under Section 11 of the Central Excise Act, 1944 [for short 'the Act'] on the premise that the assessee had suppressed dutiable turnover of its confectionery products which is liable to excise duty under chapters 18 and 19 of the Central Excise Tariff Act, 1985, relevant for the period from 1-4-2002 to 31-3-2006. 2. While the respondent-assessee a franchisee of Le Meridian chain of Hotels had been carrying on activity of preparing confectionery products and supplying it to Hotel Le Meridian and were charging the price for it, the respondent who it appears had doubts about the liability or otherwise under the provisions of the Act had communi....

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.... the proposition of levying penalty claiming that there is no deliberate suppression of dutiable turnover and it is only because they were not properly advised or guided it had happened; that they had paid the duty on being told to pay such dues, nevertheless, the adjudicating authority adjudicated the show cause notice and chose to levy penalty of Rs. 3,89,276/- under Section 11AC of the Act on the premise that a total duty liability upto this extent having not been paid earlier. The adjudicating authority was of the view that the assessee though had paid duty even before the receipt of the show cause notice, nevertheless, duty liability being one computed by invoking the extended period of limitation as available under Section 11A of the ....

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....further letter dated 15-4-1998 and the Tribunal on perusing the entire material, held, which in our opinion a right view, that the assessee had discharged the duty liability even before the issue of show cause notice and not having resorted to dispute its duty liability, the facts and circumstances of the case clearly indicated the non attraction of Section 11[AC] of the Act for imposing any penalty on the assessee : that there was absolutely no intention to evade any payment of duty on the part of the assessee nor to suppress any facts and accordingly allowed the appeal and set aside the penalty. 10. It is aggrieved by this order of the Tribunal dated 22-5-2009, the present appeal by the Excise Department under Section 35G of the Act. ....