CCE Vs. ISHWAR PAPER MILLS

JUDGEMENT

(1.) THIS stay application is directed against order in appeal dated 28/03/2006 which set aside the penalties imposed on the respondents. Since, the issue involved is squarely covered by the judgement of the Hon'ble High Court, the stay application filed by the revenue is dismissed and appeal itself taken for disposal.

(2.) THE relevant fact that arise for consideration are that the respondent's factory was visited by the officers of the Central Excise and on the physical stock being verified, found shortage of some finished goods on which duty was paid by the respondent immediately. A show cause notice was issued on 12/02/04 to the respondents i.e. subsequent to the debits of the duty involved. The adjudicating authority appropriated the amount of duty paid and also imposed penalty under Section 11AC of the Central Excise Act. On an appeal, the Commissioner (Appeals) relying upon the decision of the Larger Bench of the Tribunal and also in the case of Rashtriya Ispat Nigam Ltd. v. Commissioner of Central Excise, Visakhapatnam as reported as set aside the penalty imposed on the respondent. Hence, revenue is in appeal.

(3.) THE learned DR submits that the fact of removal of goods clandestinely has been proved from the fact that the respondent have already deposited the amount involved in this case. It is his submission Sub -section 2B of Section 11A could come in play and the explanation to that sub -section will get attracted and the penalty is imposable on the respondent. The learned advocate for the respondents submits that the issue is squarely covered by the decision of the Hon'ble High Court of judicature at Bombay in the case of Central Excise - I v. Gaurav Mercantiles Ltd. .