TaxTMI 
TaxTMI 
TaxTMI 
2009 (12) TMI 1078
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.... The Tribunal in the aforementioned order has taken the view that the amount of penalty under Section 11AC of the Central Excise Act, 1944 (for brevity, 'the Act') could be dropped in the peculiar facts and circumstances of the case and accordingly upheld the order passed by the Commissioner (Appeals). The Tribunal has also opined by placing reliance on its larger bench judgment in the case of CCE v. Machino Montell (I) Ltd., 2004 (168) ELT 466, holding that where the duty has been deposited by the dealer-assessee before issuance of show cause notice by the revenue then neither penalty could be imposed nor any interest could be demanded. Accordingly, the revenue has claimed by filing these appeals under Section 35G of the Act that the follo....
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....tory premises of the dealer-assessee was visited where Shri Balraj Garg, Director and Shri Avtar Singh, authorised signatory were present. 3. From the scrutiny of the record and sale invoices, it was noticed that the dealer-assessee has not issued any Central Excise invoice for clearance of the goods to M/s Ganesh Trading Company. It was told by the aforementioned persons that they had removed the goods from the factory premises without issuance of any invoice, without accounting for those goods in the records; and without assessment or determination of Cenvat duty payable by them. Accordingly, the goods were seized on 16.8.2003. On a physical stock verification shortage of 55480 MTs of non-alloy steel ingots and 12.130 MTs of steel wire....
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.... evidence/proof to show the clandestine removal of short found raw material. In this regard it is worth mentioning that Sh. Balraj Garg, director of the noticee in his statement tendered on 16.08.2003 has clearly stated that the qty. of raw material and finished goods found short in the factory were sold by them on cash basis without issue of invoices and without payment of duty involved on these goods. The statement tendered by the director at the time of goods found short, has never been retracted by him even at later stage and it is only in the reply to show cause notice that the consultant has given a different explanation. Even if the plea now advanced by the consultant is accepted, it is not understood as to why Sh. Balraj Garg, direc....
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....tion under Rule 25(1) of the Rules and duty involved thereon is recoverable from them under Section 11A(1) of the Act......" 6. Accordingly, in view of the aforesaid categorical findings the following order was passed:- "1. I order confiscation of seized Steel Wire Rods weighing 24,175 MT valued at Rs. 4,05,120/- involving Cenvat duty of Rs. 64,820/- under Rule 25(1) of the Rules. However, the noticee have an option to redeem the same on payment of redemption line of Rs. 40,000/- (Rs. Forty thousand only). I also confirm the demand of Cenvat duty of Rs. 64,820/- under Section 11A of the Act involved on such goods which will be payable by the noticee at the time of clearance of such goods from their factory. 2. I confirm....
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....were imposed upon the director and authorised signatory of the dealer- assesse. On further appeal filed by the revenue, the Tribunal sustained the order passed by the Commissioner (Appeals). 8. The question whether the amount of penalty under Section 11 AC could be reduced is now stand settled by the judgment of Hon'ble the Supreme Court in the case of Union of India v. Dharamendra Textile Processors, 2008 (231) E.L.T. 3 (S.C). It has been categorically held that there is no discretion vested in the Assessing Officer or any other authority to reduce the amount of penalty. It is mandatory for him to impose the penalty equivalent to the amount of duty attempted to be evaded. The aforesaid judgment has again come up for consideration before....