2010 (2) TMI 1039

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....nly short payment of duty without attributing malafide intention. Therefore penalty is not imposable. He refers to the provisions contained in Section 11AC of Central Excise Act, 1944 read with judgment of the Hon'ble Delhi High Court in the case of K.P. Pouches for grant of concessional penalty even if there is imposition of penalty. 3. So far as penalty on Shri Amit Sharma is concerned, submission of learned Counsel is that on 20-3-2006 during visit by the investigating team the appellant was absent. There was non accountal of goods purchased. Reliance was placed by Revenue on the statement recorded from Shri Amit Sharma and that was extracted in show cause notice. When there was no discrepancy found, there was no penalty imposable on ....

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....il concession in penalty. In absence of such option granted there will be denial of justice. 9. Perusal of order of Single Member Bench of Chennai does not throw light whether para 27 of the judgement of Hon'ble High Court of Delhi in the case of K.P. Pouches' case (supra) received consideration. Once there is no consideration of the ratio laid down by Hon'ble High Court of Delhi, Revenue's reliance on the judgement of Ponneri Steel Industries (supra) is not profitable. Following anxiety of Hon'ble High Court of Delhi as expressed in the Judgment of K.P. Pouches' case, it is necessary to carry out mandate of the statute as that has been directed by Hon'ble High Court. Such direction not being followed, the appellant deserves to be dealt ....