2010 (12) TMI 154

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....ave enclosed a copy of acknowledgement for payment of fee in the form of DD which was handed over to the registry. Since the applicants have already removed the defect, I take up the appeals for disposal. 2.These three appeals are directed against the same Order-in-Appeal No. 161A/2010 - CE dated 31.5.2010 passed by the Commissioner of Central Excise (Appeals-I), Bangalore 3.The relevant fact that arise for consideration are during the scrutiny of TR-6 Challans by the audit party of CAG, it was noticed that TR-6 Challans wherein an amount of Rs.5,20,000/- was indicated to be credited to the Government account on 31.3.2006, was noticed to have not been credited. Subsequent action and correspondence made the lower authorities to come to a c....

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....iven by the bank on 31.3.2006. He would also draw my attention to the bank balance available in appellant companys account on 31.3.2006. He would submit that there was sufficient balance for honouring of cheques. He would submit that the entire demand has arisen because the bank officials had misplaced the cheques which were given to them and it was not noticed by the appellant or by the revenue. He would submit that penalty reduced by the learned Commissioner (A) on the company is also improper as there is no reason for invoking provisions of Section 11AC. He would rely upon the judgment of the Tribunal in the case of Kitply Industries Ltd. Vs. CCE, Meerut-II  - 2009 (243) ELT 209 (Tri.-Del.) for the proposition that even if the chequ....

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....red. It is nobodys case that the cheques were dishonoured and there was no balance in the appellants account maintained in the bank. 6.2On this factual matrix, I find that the show cause notice invoking the provisions of Section 11AC for imposition of penalty seems to be misconceived, as the appellant has discharged the entire amount of duty along with interest on 3.1.2009 before the issuance of show cause notice. Honrable Supreme Court in the case of UOI Vs. Rajasthan Spinning & Weaving Mills - 2009 (238) ELT 3 (SC) has specifically held that provisions of Section 11AC can be invoked if the ingredients of Section 11AC of Central Excise Act, 1944 are present. In this case, I find that ingredients of Section 11AC are absent. I also find str....