2005 (6) TMI 108

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....d the cotton yarn. It appeared to them from an invoice dated 14-2-2000 produced by one Shri Raju (who was accompanying the goods) that the goods were being transported to the premises of M/s. Sri Selvakumar Textiles (in short, SSKT). A statement of Shri R. Manoharan, Manager of SSKT (appellants in appeal No. E/911/2004) was recorded by the officers. A statement was also recorded from a functionary of M/s. LTEL. Subsequently a show cause notice was issued to M/s. LTEL, M/s. SSKT and Shri K. Rajendran, owner of the Tempo (appellant in Appeal No. E/912/2004). In adjudication of this notice, the original authority confiscated the cotton yarn (valued at Rs. 1,16,000/-) with a redemption fine of Rs. 29,000/-, confiscated the vehicle with a redemp....

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....ted by him in support of this argument. The argument has been contested by ld. SDR, who has relied on Final Order Nos. 126/2005, dated 24-1-2005 and 365/2005, dated 8-3-2005 [2005 (186) E.L.T. 178 (T)] of the South Zonal Bench (Chennai) to argue that the case law cited by ld. Consultant is not applicable to the facts of the instant case as the payment of duty in the instant case was not voluntary. The duty was paid only after clandestine removal of goods was noticed by the department. Countering this argument, ld. Consultant has submitted that whether or not payment of duty was voluntary is immaterial. In this connection, he has relied on the Madras High Court's judgment in CCE, Madras v. Jkon Engineering (P) Ltd. [2005 (67) RLT 157 (Ma....

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.... that, irrespective of whether non-payment of duty was on account of suppression of facts or not and whether the subsequent payment of duty was before issuance of show cause notice or thereafter, any penalty is not imposable on the assessee under Section 11AC of the Central Excise Act, provided the duty was paid before the conclusion of the adjudication proceedings. No better case law has been cited before me. Hence the penalty imposed on M/s. LTEL under Section 11AC cannot be sustained. Appeal No. E/913/2004 is allowed only to the extent of setting aside this penalty. 3. There is a penalty of Rs. 3,000/- on M/s. SSKT under Rule 209A. Under this provision of law, a penalty could be imposed on a person who acquired possession of, or other....