TaxTMI 
TaxTMI 
2007 (8) TMI 184
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....ee in those cases which fall under the purview of Explanation (1) to sub-section (2B) of Section 11A of the Central Excise Act, 1944, where duty has been deposited before issue of show cause notice? (ii) Whether the CESTAT is justified in waiving the penalty imposed on the Director of the party under Rule 26 of the Central Excise Rules particularly when he had admitted the shortage of the goods detected by the Central Excise Staff and the clandestine removal of the goods could not be carried out without his knowledge and connivance?" 2. M/s. Omkar Steel Tubes (P) Limited are registered under the Central Excise. It is engaged in the manufacture of Non-Alloy Steel Pipes falling under sub-heading 7306.90 of the Central Excise Tariff Act, 198....
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....een paid before the issuance of show cause notice then no penalty was leviable. The Tribunal in that regard placed reliance w its Larger Bench decision in the case of Machino Montell, 2004 (168) E.L.T. 466 (Tribunal) = 2004 (62) RLT 709 (P-3). 4. Mr. Rahul Sharma, learned counsel for the appellant-revenue has submitted that the order passed by the Tribunal is primarily based on an earlier order passed by a Larger Bench of the Tribunal in Machino Montell case (supra) and that the aforementioned view of the Tribunal has been overturned by a Division on Bench of this court in the case of Commissioner of Central Excise, Delhi-III v. M/s. Machino Montell (I) Ltd. and another (C.E.A. No. 13 of 2005, decided on 25-7- 2006) - (202) E.L.T. 398 (P&H....
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....five per cent of the duty so determined : Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken Into account : Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of r....
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..... When the order dated 13-8-2005, passed by the Adjudicating Authority (P-I), order dated 13-2-2006, passed by the Appellate Authority (P-2) and order dated 1-6-2006, passed by the Tribunal (P-3), are examined in the light of Section 11AC of the Act, no finding has been recorded regarding mens rea or any .intention on the part of the assessee that the goods were removed with the intention to evade payment of duty. The Adjudicating Authority merely makes a reference to the statement of the assessee tendered under Section 14 of the Act. Shri Shankar Lal, Director-respondent No. 2, has stated that he was not in a position to reveal the whereabouts of the steel pipes nor he could furnish any reason for the shortage. He had asked for a lenient v....