2011 (1) TMI 281

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....The appeal No.E/482/09 is by the department against the order of the Commissioner (Appeals) No.194-195/CE/LKO/08 dt.26.11.2008. The cross objection No.E/90/09-SM is connected to this appeal which is basically in support of the order of the Commissioner (Appeals).   2. Heard both sides.   3. The department is in appeal on the ground that the Commissioner (Appeals) has reduced the pe....

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....ayment only CVD and education cess and without payment of SAD, he submits that the penalty imposed by the original authority amounting to Rs.92,285/- should have been sustained in the light of the provision of Rule 15 (2) of Cenvat Credit Rules, 2004 read with Section 11AC.   5. Learned Advocate strongly supports the order of the Commissioner (Appeals). He also draws my attention to the de....

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....unt as penalty as claimed by the department.   7. I have carefully considered the submissions from both sides and perused the records, As regards penalty of Rs.19,961/-, it is a clear case of admitted clandestine removal followed by payment of duty involved and therefore the provisions of Section 11AC are clearly attracted. However, as duty stands paid before issue of show cause notice, an....

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.... 25 can never exceed the duty evaded which is the prescribed penalty under provisions of section 11AC. Rule 25 does not envisage that the penalty should be always equal to the duty short levied or short paid or evaded and discretion is inbuilt under Rule 25. Therefore, the grounds of appeal which seeks invokation of Rule 25 do not justify penalty equal to duty evaded, as sought to be canvassed by ....