PENALTY UNDER SEC 11AC OF C.EX. ACT
CESTAT KOLKATA BENCH, while passing the final order no.A718 on 04.12.09 in re: IOCL HALDIA REFY vs CCEX HALDIA observed as follows: -
QUOTE: The Honble Supreme Court in the case of UOI vs RAJASTHAN SPINNING & WEAVING MILLS [2009-238-ELT-3 (SC) held that the application of Section 11AC would depend upon the existence or otherwise the conditions expressly stated in the Section, once the Section is applicable in a case the concerned authority would have no discretion in quantifying the amount of penalty. In the present case I find that even in the show cause notice there is no whisper of fraud, collusion or any willful misstatement or suppression of facts with intent to evade payment of duty. In order to attract the provisions of Section 11AC of the Act it must be alleged in the show cause notice that the duty had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of facts or by reason of contravention of any provision of Act or Rules with intent to evade payment of duty. In the present case the excess duty paid and adjustment of the same was reflected in the monthly returns. In these circumstances I find merit in the contention of Appellant and in view of the above decision of Honble Supreme Court the penalty imposed under Section 11AC is not sustainable hence set aside. Appeal is allowed. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_ezb_A718]
CESTAT ORDER
VENKATRAMAN RAGGHUPATHY, Web admin.
