TaxTMI 
TaxTMI 
2011 (1) TMI 746
X X X X Extracts X X X X
X X X X Extracts X X X X
....rer of sheet metal components, parts of medical equipment and fitness equipment falling under CSH 8537.00, 9033.00 and 9506.22 respectively of the First Schedule to the Central Excise Tariff Act, 1985. During the investigation, it was found that the assessee had cleared the raw materials and semi finished goods for job work to various job workers during the period from July, 2001 to June, 2002 and they did not receive them back after completion of job work even after the lapse of the stipulated period of 180 days and that the assessee did not reverse the appropriate duty amount payable on these semi-finished raw materials sent for job work as stipulated under the CENVAT Credit Rules. They also cleared excisable goods for testing, inspection....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the same the revenue preferred an appeal before the Commissioner of Central Excise (Appeals-I) who interfered with the order passed by the Original Authority and held as these irregularities were noticed in the course of investigation and the assessee had deliberately evaded payment of duty, it was of the view that "mens rea" was proved and penalty is liable to be imposed, of course a reduced penalty of 25%. Aggrieved by the said order, the assessee preferred an appeal to the Tribunal. The tribunal following the judgment of the Apex Court in the case of Union of India v. Rajasthan Spinning and Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.) held as there is no determination of duty liability under the provisions of Section 11A(2) of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the liability to pay the penalty arises on the person who is liable to pay duty as determined under sub-Section 2 of Section 11A. 6. Therefore, the determination of liability to pay duty is a condition precedent for imposing penalty. If after demand of duty if the assessee without contesting the claim voluntarily pays the duty and interest payable thereon for the delay in payment of duty on the stipulated day, the question of the Officer determining the duty payable would not arise, It is only in cases duty is determined coupled with the fact that the duty is evaded by a reason of fraud, conclusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of this Act or the rules made thereunder wi....