2018 (10) TMI 531

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....by them and used either internally, or shipped to their other plants, were sought to be subject to recovery of differential duty of Central Excise amounting to ` 89,39,194 for the period from 1st April 2004 to 31st March 2007, along with interest thereof, and imposing penalties of like amount under section 11AC of Central Excise Act, 1944. Likewise for the period from 1st April 2007 to 31st March 2008, covered by a second show cause notice, the assessee was subject to recovery of duty of Rs. 20,87,650, along with interest thereon, and imposed with penalty of like amount under section 11AC of Central Excise Act, 1944. Aggrieved by this order, the appellant is before us. 2. The appellant contends that the order for recovery of duty is erro....

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....at imposition of penalty is mandatory. According to him, in that very order, it has been held that the finding of absence of malafides is sustainable only if there has been no challenge to the failure in imposing penalty. Relying upon the decision of the Larger Bench of the Tribunal in Lucas TVS Ltd v. Commissioner of Central Excise, Chennai [2009 (233) EL T192 (Tri-LB)], which held that any differential duty paid is also covered by the expression 'short-paid' in section 11AC of Central Excise Act, 1944, Learned Authorised Representative insists that the penal provisions are to be invoked. Further reliance is placed on the decision of the Hon'ble Supreme Court in Union of India v. Dharamendra Textile Processors [2008 (231) ELT 3 (SC)] by Le....